California's Constitutional Sunshine Amendment: On November 2, 2004, California voters overwhelmingly approved Proposition 59, an amendment to California's Constitution that elevated the public's right of access to public records and public meetings to constitutional stature. This amendment, set forth in article I, section 3(b) of the California Constitution, and commonly called the Sunshine Amendment, declares: "The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." Cal. Const. art. I, § 3(b); see appendix for full text of the Sunshine Amendment.
The Sunshine Amendment accomplishes many things. First, it firmly establishes a fundamental constitutional right for people to scrutinize what their government is doing by mandating access to government records and meetings of government bodies. By elevating the right of access to constitutional statute, all newly enacted state laws and administrative regulations must conform to the Sunshine Amendment's provisions. Practically speaking, it brings more weight to the public's right of access because it leaves no doubt as to the importance of access to the people of California and consequently renders ineffective the assertion that access in a particular case serves no public purpose — a claim often asserted by government agencies to defeat access. Similarly, it strengthens the case for access in particular cases where, under existing statutory exemptions, records can be withheld when the public's interest in non-disclosure clearly outweighs the public's interest in disclosure. See Cal. Gov't Code § 6255. This is so because most interests in non-disclosure are not constitutionally based and thus will be of significantly less importance when weighed against a now-constitutional right of access.
Second, unlike statutory rights of access under California's Public Records Act and The Ralph M. Brown Act, the Sunshine Amendment applies not just to the executive branch of government but to the judicial and legislative branches as well. See Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch records). While the Amendment expressly reserves existing protections for proceedings and records of the Legislature and rules adopted in furtherance of those protections, and maintains all other preexisting constitutional and statutory exemptions to the right of access to public records and meetings, these branches of government are now within the mantle of the public's constitutional right of access.
Third, the Sunshine Amendment requires that statutes, court rules, or other authority be construed broadly when they further the public's right of access and be construed narrowly when they limit the right of access — rules of construction from which many courts have strayed in recent years to the detriment of open government. Cal. Const. art. I, § 3(b)(2). See Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (where terms are ambiguous the Sunshine Amendment requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided otherwise); see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 617, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017).
Fourth, in adopting new laws, court rules, or other authority that limit the right of access, public bodies must now make express findings demonstrating the interest purportedly protected and the need for protecting that interest. Cal. Const. art. I, § 3(b)(2). Thus, the adoption of agency rules and regulations, for example, intended to impede public access will no longer be allowed on the whim of the agency's governing body but will require actual on-the-record findings demonstrating the need for secrecy and demonstrating how the exemption will achieve that need — findings similar to that required by a court before sealing a court record or closing a court proceeding.
Lastly, the Sunshine Amendment leaves intact the right of privacy guaranteed by the constitution by clarifying that it does not supersede or modify the existing constitutional right of privacy. And, disconcerting for proponents of access, the Amendment expressly does not affect existing statutory protections afforded peace officers over information concerning their official performance or professional qualifications. Id., § 3(b)(3).
California Public Records Act: Effective January 2023, the CPRA Recodification Act of 2021 reorganized and recodified the provisions of former Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code, which comprised the California Public Records Act (“CPRA”). The Recodification Act does not make substantive changes to the former provisions of the CPRA, does not affect judicial or attorney general decisions interpreting previously existing provisions of the CPRA, and may be referred to as the CPRA. See Cal. Gov’t Code §§ 7920.000, 7920.005, 7920.100, 7920.110. As recodified, California Government Code Sections 7920.000-7930.215 now comprise the CPRA. Previously cited code provisions throughout this guide have been substituted for their current provisions, which are placed in brackets where referenced in case law.
In enacting the CPRA the Legislature expressly declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov't Code § 7921.00. Indeed, in California, "access to government records has been deemed a fundamental interest of citizenship." Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal. 4th 319, 328, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007) (“Int’l Federation”) (quoting CBS Inc. v. Block, 42 Cal. 3d 646, 652 n.5, 230 Cal. Rptr. 362, 725 P. 2d 470 (1986)). By promoting prompt public access to government records, the CPRA is "intended to safeguard the accountability of government to the public." Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 901, 205 Cal. Rptr. 92 (1984). As the California Supreme Court recognized in International Federation:
Implicit in a 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.
Id. at 328-29 (quoting Block, 42 Cal. 3d at 651). The court has emphasized that "maximum disclosure of the conduct of governmental operations [is] to be promoted by the act." Block, 42 Cal. 3d at 651-52 (emphasis added).
In general, the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” Sander, 58 Cal. 4th 323 (emphasis in original); City of San Jose, 2 Cal. 5th at 616 (quoting Sander).
Public records are broadly defined to include "any writing containing information relating to the conduct of a public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Cal. Gov't Code § 7920.530. This definition has four aspects: “It is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” City of San Jose, 2 Cal. 5th at 617. To qualify as a public record “a writing must relate in some substantive way to the conduct of the public’s business.” Id. at 618. “Generally, any ‘record . . . kept by an officer because it is necessary or convenient to the discharge of his official duty . . . is a public record.’” Id. at 618 (quoting Braun v. City of Taft, 154 Cal. App. 3d 332, 340, 201 Cal. Rptr. 654 (1984)).
Moreover, unless the public records of a local agency are exempt from the provisions of the CPRA, they must be made available for public inspection. See ACLU v. Superior Court, 3 Cal. 5th 1032 1038-39, 221 Cal. Rptr. 832, 400 P.3d 432 (2017) (quoting Williams v. Superior Court, 5 Cal. 4th 337, 346, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993)); see also Sierra Club, 57 Cal. 4th at 166; City of San Jose, 2 Cal. 5th at 617; Int’l Federation, 42 Cal. 4th at 329. Exemptions must be narrowly construed and the public agency bears the burden of proving that an exemption applies. Sierra Club, 57 Cal. 4th at 166 (narrow construction constitutionally mandated); City of San Jose, 2 Cal. 5th at 617 (same); BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755, 49 Cal. Rptr. 3d 519 (2006); Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004).
Because the CPRA was modeled after the federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., courts may look to case law under FOIA in construing the CPRA. See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991); Am. Civil Liberties Union Found. v. Deukmejian, 32 Cal. 3d 440, 447, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); but see Williams, 5 Cal. 4th at 348-54 (holding that CPRA's exemption for law enforcement investigatory records did not incorporate FOIA criteria and thus courts cannot look to FOIA cases to interpret Section [7923.600(a)] of the CPRA, but must look to the statutory language of the CPRA provision to construe the statute).
Most of the exemptions under the CPRA are listed under Section 7920.505 (formerly Section 6254) and further delineated in Sections 7923.600-7929.610. These exemptions are specific to certain records or types of records, but under Section 7922.000 (formerly Section 6255) a general exemption exists where, on the facts of the particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Cal. Gov't Code § 7922.000 (commonly called the "catch all" exemption). In reviewing the propriety of an agency decision to withhold records, a court is charged with ascertaining whether nondisclosure was justified under either of these statutes. Cal. Gov't Code § 7923.110.
To facilitate prompt public access to public records, court orders either directing disclosure of public records or supporting an agency's decision of nondisclosure are immediately reviewable by an appellate court by way of an emergency petition seeking issuance of an extraordinary writ. Cal. Gov't Code § 7923.500. In 1991, the California Supreme Court made clear that under this writ procedure, trial court orders are reviewable on their merits. Times Mirror Co., 53 Cal. 3d at 1336; see also State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1185, 13 Cal. Rptr. 2d 342 (1992) (echoing the decision in Times Mirror and stating that the scope of review by a writ of review is equivalent with the scope of review on appeal). Thus, when a trial court order under the CPRA is reviewed by an appellate court, the independent review standard is employed for legal issues and factual findings made by the trial court will be upheld if they are based on substantial evidence. Times Mirror Co., 53 Cal. 3d at 1336 (citing Block, 42 Cal. 3d at 650-51).
Court Administrative Records: California Rules of Court (10.500 et. seq.) set forth a comprehensive scheme much like that of the CPRA for access to administrative records of the state trial and appellate courts, the Judicial Council, and the Administrative Office of the Courts. "‘Judicial administrative record’ means any writing containing information relating to the conduct of the people's business that is prepared, owned, used, or retained by a judicial branch entity regardless of the writing's physical form or characteristics, except an adjudicative record. The term ‘judicial administrative record’ does not include records of a personal nature that are not used in or do not relate to the people's business, such as personal notes, memoranda, electronic mail, calendar entries, and records of Internet use.” Cal. R. Ct. 10.500(c)(2). Like the CPRA, judicial administrative records, such as budget and management information relating to the administration of the courts, are open to the public unless specifically exempt. Cal. R. Ct. 10.500(e)(1)(A). The Rules contain similar exemptions as under the CPRA, such as those for personnel, medical and similar records, and adopts other exemptions unique to the specific functions of the judicial branch. The Rules require a determination as to whether the records will be made available within 10 calendar days of the request and, if disclosable, that they thereafter be made available promptly. Cal. R. Ct. 10.500(e)(6) & (7). Generally, the Rules allow for the recovery of the direct cost of duplication, but if records are intended for commercial purposes, the Rules allow for recovery of search and review costs as well. Cal. R. Ct. 10.500(e)(4). Similar to the fee recovery provisions pertaining to electronic records under the CPRA, the Rules allow for recovery of the direct cost of producing an electronic record, including computer programming, when the record is not one produced by the judicial branch at regularly scheduled intervals or its production requires data compilation or extraction, or related programming, not otherwise required under the Rules. Cal. R. Ct. 10.500(i)(2). The Rules are enforceable under the writ procedures available for enforcing access to records under the CPRA. Cal. R. Ct. 10.500(j)(2). Alternatively, they are enforceable under the writ procedures of Rule 10.803, which allow for expedited review of the petition by a hearing judge selected from a panel of appellate court justice. The justice selected to hear the matter in the superior court must be from a judicial district other than one in which the dispute arises. Cal. R. Ct. 10.803. As under the CPRA, reasonable attorneys’ fees and costs are recoverable to a prevailing plaintiff. Cal. R. Ct. 10.500(j)(6).
Open Meetings: The law in California pertaining to open meetings is set forth in four Acts, namely, the Ralph M. Brown Act ("Brown Act"), found at Sections 54950 through 54963 of the California Government Code, the Bagley-Keene Open Meeting Act ("Bagley-Keene Act"), found at Sections 11120 through 11132 of the California Government Code, the Richard McKee Transparency Act, found at Sections 72690-72701, 89913-89919, 92950-92961 of the California Education Code and the open meeting provisions governing the State's legislative branch, found at Sections 9027 through 9031 of the California Government Code.
The Brown Act was enacted into law in 1953 to require open meetings of local agencies and "to curb misuse of the democratic process by secret legislation of public bodies." Epstein v. Hollywood Entertainment Dist. II Business Improvement Dist., 87 Cal. App. 4th 862, 867, 104 Cal. Rptr. 2d 857 (2001). The Act declares, in part:
The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Cal. Gov't Code § 54950. As stated by one court, "[i]t is clearly the public policy of this State that the proceedings of public agencies, and the conduct of the public's business, shall take place at open meetings, and that the deliberative process by which decisions related to the public's business shall be conducted in full view of the public." Epstein, 87 Cal. App. 4th at 867; see also Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555, 35 Cal Rptr. 2d 782 (1994). The Act applies to "local agencies," defined in Section 54951 as "a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency." Cal. Gov't Code § 54950.
Under the Act, "[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter." Cal. Gov't Code § 54953(a). A "meeting" includes "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." Cal. Gov't Code § 54952.2(a). The Act extends to a legislative body's "informal sessions or conferences," even if no vote is taken. Sacramento Newspaper Guild v. Sacramento Cty. Bd. of Supervisors, 263 Cal. App. 2d 41, 47, 69 Cal Rptr. 480 (1968). As explained, the Act includes "deliberation as well as action" because "deliberation and action [are] dual components of the collective decision-making process . . . ." Id. at 51.
The Act contains specific exemptions from the open meetings requirements, but these exemptions must be narrowly construed and if a specific statutory exemption does not exist, the matter must be conducted in public regardless of its sensitivity. Cal. Gov't Code § 54962. These specific provisions primarily concern real property acquisitions, pending litigation, personnel matters and labor negotiations. Cal. Gov't Code §§ 54956.8, 54956.9, 54957, 54957.6. Importantly, the Act sets forth the minimum access that is required by law. Local agencies are free to "allow greater access to their meetings than prescribed by the minimal standards set forth in [the Act]." Cal. Gov't Code § 54953.7.
In keeping with the Act's open meetings provisions, the Act contains, among other things, provisions governing when meetings must be noticed and when agendas must be prepared. Cal. Gov't Code §§ 54954, 54954.2. Additionally, before or during consideration of each agenda item, the public must be given an opportunity to comment on the item. Cal. Gov't Code § 54954.3(a). The Act prohibits agencies from requiring members of the public, as a condition to attendance, to register his or her name, provide other information, or "otherwise to fulfill any condition precedent to his or her attendance." Cal. Gov't Code § 54953.3. And, members of the public attending public meetings have the right to record the proceedings with audio or video tape recorders or still or motion picture cameras unless the agency finds that such recordings amount to a "persistent disruption of the proceedings." Cal. Gov't Code § 54953.5(a).
The Act contains provisions for civil remedies and criminal misdemeanor penalties for certain violations. Cal. Gov't Code §§ 54960, 54960.1. The nature of civil proceedings are three-fold: (1) actions to stop or prevent ongoing violations or threatened violations of the Act; (2) actions to determine the application of the Act to ongoing actions, threatened future actions, or past actions; and, (3) actions to void action taken by a legislative body in violation of certain provisions of the Act. Cal. Gov't Code §§ 54960 and 54960.1, respectively. Actions to void actions taken in violation of specified provisions of the Act require that the interested party first make a written demand to the local agency to cure or correct the action alleged to have been taken in violation the Act. Cal. Gov't Code § 54960.1(b). In actions to determine the application of the Act to past action, the Act requires that the interested party first send a cease and desist letter to the local agency. Cal. Gov’t Code § 54960.2. In civil actions, the Act allows for the recovery of costs and reasonable attorneys' fees. Cal. Gov't Code § 54960.5.
The Bagley-Keene Act was enacted in 1967 to extend the basic concept of the Brown Act to "state bodies." This Act contains many parallel provisions as are in the Brown Act. Except as otherwise exempted, state bodies means "every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order." Cal. Gov't Code § 11121(a). Specific bodies are excluded from this definition at Section 11121.1. With respect to the public higher education systems in California, the Bagley-Keene Act applies to meetings of the governing boards of community colleges, state universities and the Regents of the University of California, and meetings of these bodies must be open to the public. Meetings are defined as they are in the Brown Act, with varying notice provisions. Cal. Gov't Code § 11122.5(a). Closed sessions are authorized on, among other topics, specified personnel matters, real property negotiations with negotiator, labor negotiations and pending litigation. Cal. Gov't Code § 11126. The Bagley-Keene Act contains similar enforcement provisions as in the Brown Act. Gov't Code § 11130(a); 11130.3(a). And, under the Bagley-Keene Act, there is no need to serve a demand to cure or correct before seeking to nullify action taken by state bodies under Section 11130.3(a). Nor is there any requirement to serve a cease and desist letter before instituting an action passed on the state bodies past action. Cal. Gov't Code § 11130(a).
In 1973, the California Legislature enacted the Grunsky-Burton Open Meeting Act, Section 9027 of the Government Code, which provides that all meetings of the Senate and Assembly and the committees, subcommittees and conference committees were to be "conducted openly" so that the public may remain informed. That section was repealed in 1984 and replaced with Section 9926 of the Legislative Reform Act of 1983. In 1989, those provisions were repealed and replaced with similar provisions which can be found again at Sections 9027 through 9031, inclusive, of the Government Code. Because of their relatively simple language, scope and application, those provisions will be given limited attention in this outline.
This foreword was written by Duffy Carolan.
"[A]ccess to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov't Code § 7921.000. "Every person" can inspect public records. Cal. Gov't Code § 7922.510 . "Person" includes any natural person, corporation, partnership, limited liability company, firm, or association. Cal. Gov't Code § 7920.520. The CPRA does not differentiate among those who seek access to public information. If a record is public, as defined by or construed under the CPRA, all persons have the same right of access. Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 242, 175 Cal. Rprt. 3d 90 (2014); Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1324, 89 Cal. Rptr. 3d 374 (2009); State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1190, 13 Cal. Rptr. 2d 342 (1992).
For example, citizens of other states, and foreign as well as domestic corporations are included in the CPRA's definition of "person." Connell v. Superior Court, 56 Cal. App. 4th 601, 611-12, 65 Cal. Rptr. 2d 738 (1997). A municipal corporation, as well as it elected city attorney, is also a “person” entitled to request documents from another governmental agency. Los Angeles Unified Sch. Dist. v. Superior Court, 151 Cal. App. 4th 759, 771, 60 Cal. Rptr. 3d 445 (2007). Section 7921.305 of the Government Code expressly allows an elected member or official of any state or local agency to access public records of that agency — or any other — on the same basis as any other person. Cal. Gov't Code § 7921.305. Likewise, a plaintiff who files suit against a public agency may utilize the CPRA to obtain documents for use in litigation to the same extent as any other person. Cty. of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 826, 98 Cal. Rptr. 2d 564 (2000). Members of the media, while "persons" under the CPRA, have no greater right of access than the general public. Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1279, 88 Cal. Rptr. 3d 847 (2009); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1417 n.7, 44 Cal. Rptr. 2d 532 (1995). Conversely, a person personally affected by the public record has no greater right of access than other persons under the CPRA. Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668, 135 Cal. Rptr. 575 (1977).
There are no limitations on access to public records based on the purpose for which the record is being requested, if the record is otherwise subject to disclosure. Cal. Gov't Code § 7921.300. A member of the public need not state the purpose for requesting records. See Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 242, 175 Cal. Rptr. 3d 90 (2014); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1191, 13 Cal. Rptr. 2d 342 (1992). This is so because “[t]he motive of the particular requester is irrelevant; the question instead is whether disclosure serves the public interest.” Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1324, 89 Cal. Rptr. 3d 374 (2009) (rejecting county’s standing argument that open government group had no particularized interest in GIS basemap data other than “generalized proclamation of the ‘public’s right to know’ . . . ”). Stated another way, what is material is the public interest in disclosure, not the private interest of a requesting party. State Bd. of Equalization, 10 Cal. App. 4th at 1191.
There are no restrictions or limitations on the subsequent use of records obtained under the CPRA. In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1333, 89 Cal. Rptr. 3d 374 (2009), the court, as a matter of first impression, rejected as inconsistent with the CPRA the county’s claim that it could require requesters of its GIS basemap data to enter into licensing agreements restricting use and dissemination of the data. The court held that copyright protections under the CPRA extend “in a proper case” only to computer software. Id. at 1331-36 (“The CPRA contains no provision either for copyrighting the GIS basemap or for conditioning its release on an end user or licensing agreement by the requester.”). In ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017), involving an investigatory records claim over license plate reader data, the California Supreme Court instructed the trial court on remand that it could place no restrictions or limitations on the use of anonymized or redacted data if ultimately disclosed over security concerns advanced by police.
With one exception, a requester is not required to state the use or purpose for which the records are being requested. Cal. Gov't Code § 7921.300. Under the investigatory records exemption of Section 7923.620, an individual requesting the address of any individual arrested or the current address of the victim of a crime, must declare under penalty of perjury that the request is made for a journalistic, scholarly, political or governmental purpose, or is sought for investigatory purposes by a licensed private investigator. Additionally, the requester must declare that the information obtained pursuant to this subsection will not be used directly or indirectly to sell a product or service. Cal. Gov't Code § 7923.620; see Los Angeles Police Dep’t. v. United Reporting Publ’g Corp, 528 U.S. 32, 120 S.Ct. 483, 488, 145 L.Ed. 2d 451 (1999) (upholding facial constitutional challenge to this provision but noting that the constitutionality of the provision as applied to respondent, a publishing company that provides the names and addresses of arrested individuals to its customers, remained open to challenge); see also United Reporting Publ’g. Corp. v. Cal. Hwy. Patrol, 231 F.3d 483 (9th Cir. 2000) (where the Ninth Circuit Court of Appeals remanded action for further district court proceedings addressing the "as applied" constitutionality of this provision).
There is no limitation under the Act prohibiting individuals from making requests on behalf of third parties or organizations.
The CPRA applies to every state office, officer, department, division, bureau, board, and commission or other state body or agency, except the Legislature and the courts. Cal. Gov't Code § 7920.540(a). The CPRA expressly applies to the State Bar of California. Cal. Gov’t Code § 7920.540(b).The CPRA also applies to local agencies, including counties, cities, school districts, municipal corporations, districts, political subdivisions, or any board, commission or agency thereof; other local public agencies; or non-profit entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952 of the Government Code. Cal. Gov't Code § 7920.510. For example, a county’s claim settlement committee constituted a “local agency” under the CPRA. Register Div. of Freedom Newspapers, Inc. v. Orange County, 158 Cal. App. 3d 893, 898, 205 Cal. Rptr. 92 (1984). But a nonprofit auxiliary corporation affiliated with a state university, and which operated multi-purpose arena being built on university campus was not a “state agency” under the CPRA. Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 898, 108 Cal. Rptr. 2d 870 (2001).
The CPRA does not apply to the State Legislature or its committees. Cal. Gov't Code § 7920.510; see also Cal. Gov’t Code § 7928.100 (exempting record maintained by the Legislative Counsel). Records of the Legislature are subject to the Legislative Open Records Act. Cal. Gov't Code § 9070, et. seq. The constitutional Sunshine Amendment does apply to the Legislature because it applies generally to "public bodies" and to the "writings of public officials," without excluding the Legislature. Cal. Const. art. I, § 3(b)(1). The Amendment, however, specifically maintains exemptions and protections for confidentiality of records of the Legislature as provided for by "Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions . . . ." Cal. Const., art. I, § 3(b)(1). Moreover, in Sutter’s Place v. Superior Court, 161 Cal. App. 4th 1370, 1382, 75 Cal. Rptr. 3d 9 (2008), the court rejected the argument that the Sunshine Amendment eliminated the mental process principle asserted to protect the motives and thought processes of local legislators (not state legislators), and characterized the principle as rooted in state and federal constitution law, as well as statutory law under the CPRA’s Section 6254(k) (incorporating other prohibitions established by law), both of which the court said were expressly preserved under the Sunshine Amendment. Nevertheless, a constitutional right of access arguably would extend to records of the Legislature not exempt or otherwise protected under existing law.
With one exception, the CPRA does not apply to the judicial branch of government, which like the legislative branch is specifically excluded from the definition of "state agency" under the CPRA. Cal. Gov't Code § 7920.510. As of 2016, the definition of “state agency” under the CPRA includes the State Bar of California, a judicial branch entity. Id. § 7920.540(b).
Unlike the CPRA, with the exception of the State Bar, the constitutional Sunshine Amendment does apply to the judicial branch of government, which includes the courts, the Administrative Office of the Courts, and the Judicial Council. The Amendment applies to the "meetings of public bodies" and the "writings of public officials and agencies . . ." without excluding the Judiciary. Cal. Const. art. I, § 3(b)(1); see Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch entities, including the State Bar of California). The Amendment, however, specifically maintains "constitutional or statutory exceptions to the right of access to public records" in effect on the effective date of the Amendment. Id. § 3(b)(5).
In addition to the Sunshine Amendment, Rules of Court set forth comprehensive public access provisions applicable to judicial administrative records maintained by state trial and appellate courts, the Judicial Council, and the Administrative Office of the Courts. Cal. Rules of Court 10.500 et. seq. These rules were modeled after the CPRA.
Moreover, both the federal and state constitutions provide broad access rights to judicial proceedings and records. See, e.g., NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337 (1999) (where California Supreme Court reviewed at length constitutional right of access in both criminal and civil proceedings and held right applied to trial proceedings in civil action); see also Copley Press v. Superior Court, 63 Cal. App. 4th 367, 373, 74 Cal. Rptr. 2d 69 (1998) (recognizing constitutional right of access to school district's settlement with minor when court approval required and holding no compelling reason justified sealing settlement records); Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 115, 7 Cal. Rptr. 2d 841 (1992) (recognizing broad First Amendment right of access to judicial records in both civil and criminal proceedings and holding right attached to rough minute books of trial court).
A separate common law right of access also attaches to judicial branch records, including non-adjudicatory, administrative records, where there is a legitimate public interest in access that is not outweighed by other interests. See Sanders, 58 Cal. 4th at 323 (state bar admissions data); see also Estate of Hearst, 67 Cal. App. 3d 777, 782, 136 Cal. Rptr. 821 (1977) (probate files of probate court open).
The CPRA applies to the local and state agencies listed in Sections 7920.510 and 7920.540 of the Government Code and to private corporations and entities and lessees of any hospital pursuant to subdivisions (c) and (d), respectively, of Section 54952 of the Government Code (known as the Ralph M. Brown Act). Cal. Gov't Code §§ 7920.510, 7920.540. Specifically, private corporations or entities are subject to the CPRA if they (1) are created by an elected legislative body to exercise authority that may lawfully be delegated by the elected governing body or (2) receive funds from a local agency and have as a board member at least one member of the legislative body of the local agency appointed to the governing body of the private entity, by the legislative body of the local agency, as a full voting member. Cal. Gov't Code § 54952(c)(1); see also Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 826-30, 108 Cal. Rptr. 2d 870 (2001) (nonprofit auxiliary corporation affiliated with state university, and which operated multi-purpose arena being built on university campus, was not a state agency under CPRA); 85 Ops. Cal. Att'y. Gen. 55 (2002) (private, nonprofit corporation that received funds from school district and had on its corporate board one of district's trustees with full voting rights, and was created by the City, which lawfully delegated authority to it to operate an educational access channel, was subject to CPRA and opening meetings laws); see also Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001).
Multistate or regional bodies, such as planning authorities, are not specifically mentioned in CPRA, nor have they been the subject of any known court decisions. Arguably the CPRA would apply to multi-state bodies as “other state body or agency” under Section 7920.540 of the CPRA. Regional bodies might arguably fall within the CPRA’s definition of “state agency” as a “division, bureau, board or commission or other state body or agency . . . .” Cal. Gov’t Code § 7920.540.
Section 7920.510 of the Government Code provides that any boards, commissions or agencies that are a part of a political entity listed therein, e.g., city, county, school district, municipal corporation, political subdivision, etc., are subject to the CPRA. Cal. Gov't Code § 7920.510. But see Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 828, 108 Cal. Rptr. 2d 870 (2001) (nonprofit auxiliary corporation affiliated with a state university and which operated multi-purpose arena being built on university campus was not a “state agency” under the CPRA).
Grand Juries: The CPRA does not apply to grand juries because it specifically excludes judicial agencies established by article VI of the California Constitution. Although grand juries are not specifically mentioned in article VI, the nature of the grand jury as a judicial entity and the important public interest requiring that its proceedings be conducted in secrecy are persuasive indications that the Legislature intended the grand jury to be excluded, as are the courts, from the CPRA's provisions. McClatchy Newspapers v. Superior Court, 44 Cal. 3d 1162, 245 Cal. Rptr. 774, 751 P.2d 1329 (1988).
The constitutional Sunshine Amendment arguably does apply to grand juries because it applies generally to the meetings of public bodies and the writings of public officials and agencies. Cal. Const. art. I, § 3(b)(1). However, because the Sunshine Amendment expressly maintains pre-existing constitutional and statutory exemptions to the right of access to public records (see Cal. Const. art. I, § 3(b)(5)) and because the Legislature has enumerated several Penal Code provisions governing the secrecy of grand jury proceedings (see, e.g., Cal. Penal Code §§ 915, 924.1, 924.2, 939), it is doubtful that the Amendment provides any new access rights to records of the grand jury.
In cases where an indictment has been returned, existing statutory law provides that the public is entitled to transcripts of grand jury proceedings 10 days after delivery of the transcript to the defendant or his or her counsel unless, upon motion, it is determined that a reasonable likelihood exists that public disclosure may prejudice defendant's fair trial rights. Cal. Penal Code § 938.1(b).
Jury Commissioner: The CPRA also does not apply to the jury commissioner since the commissioner is an executive officer appointed by the superior court and therefore part of the judicial system. Pantos v. City and Cty. of San Francisco, 151 Cal. App. 3d 258, 262, 198 Cal. Rptr. 489 (1984). The constitutional Sunshine Amendment does apply to the jury commissioner because it applies generally to the meetings of public bodies and the writings of public officials and agencies without exception for the judicial branch of government. Cal. Const. art. I, § 3(b)(1); see Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch entities). However, the Sunshine Amendment expressly maintains pre-existing constitutional and statutory exemptions to the right of access to public records. Id. § 3(b)(5). Whether statutory law that provides for sealing of trial juror identifying information upon recording of a jury's verdict is such a statutory exemption is unclear given the provision for access upon a showing of good cause. See Cal. Civ. Proc. Code § 237(a)(2). Arguably, access to juror questionnaires completed to determine juror qualification, pursuant to California Civil Procedure Code Section 205, for inclusion on the master list of qualified jurors may be accessible under the Amendment. No statute exists prohibiting their public disclosure (though one limits their use, see Cal. Civ. Proc. Code § 205(b)), and previous case law holding that disclosure violated reasonable expectations of privacy did so on the particular facts of the case and in light of assurances of confidentiality provided by the court. Pantos, 151 Cal. App. 3d at 264.
Other documents held by the jury commissioner such as the master list of qualified jurors (identifying prospective jurors by name and address) and the jury summons list, which is a list of prospective or qualified jurors who are summoned to appear or to be available for jury service, are accessible court records under existing constitutional, statutory and common law. Id. at 262-63 (citing constitutional and statutory authority for access to court records and holding master list and summons list are public documents subject to public inspection); see also Alfaro v. Superior Court, 58 Cal. App. 5th 371, 386, 272 Cal. Rptr. 3d 404 (2020).
Homeowners' Associations: These are not governmental agencies and they are neither a state or local agency or a subdivision thereof. Thus, they are not subject to the CPRA.
All records of included agencies are subject to the CPRA unless the Legislature has expressly provided to the contrary. ACLU v. Superior Court, 3 Cal. 5th 1032, 1038-39, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017) (quoting Williams v. Superior Court, 5 Cal. 4th 337, 346, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993)); see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017); Sierra Club v. Superior Court, 57 Cal. 4th 157, 166, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013); Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal. 4th 319, 329, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007). "Public records" are broadly defined under the CPRA to 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." Cal. Gov't Code § 7920.530. “Writings” are defined broadly under the CPRA. Cal. Gov’t Code § 7920.545.
The definition of public records has four aspects: “It is (1) a writing, (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” City of San Jose, 2 Cal. 5th at 617. To qualify as a public record “a writing must relate in some substantive way to the conduct of the public’s business.” Id. at 618. “Generally, any ‘record . . . kept by an officer because it is necessary or convenient to the discharge of his official duty . . . is a public record.’” Id. at 618 (quoting Braun v. City of Taft, 154 Cal. App. 3d 332, 340, 201 Cal. Rptr. 654 (1984)). However, records do not have to be in the agency’s custody to be a public record as the CPRA applies to records “prepared, owned, used or retained.” Cal. Gov’t Code § 7920.530 (emphasis added). For example, in City of San Jose, the California Supreme Court held that emails sent to or from public officials through nongovernmental email accounts relating to official agency business are public records under the CPRA even though the city did not maintain the emails on its own servers. Id. at 616.
In so holding, the court recognized that an agency’s actual or constructive possession of records is deemed relevant in determining whether it has an obligation to search for, collect, and disclose material requested. See City of San Jose, 2 Cal. 5th at 623 (holding city had obligation to implement search procedures for records in possession of city employees who used personal accounts to conduct official business); see also Bd. of Pilot Comm’rs for the Bays of S.F., San Pablo and Suisan v. Superior Court, 218 Cal. App. 4th 577, 598, 160 Cal. Rptr. 3d 285 (2013) (“[A]n agency has constructive possession of records if it has the right to control the records, either directly or through another person.”) (quoting Consol. Irrigation Dist. v. Superior Court, 205 Cal. App. 4th 697, 710, 140 Cal. Rptr. 622 (2012) (holding that subconsultants’ files were not within constructive possession of city)); Cmty. Youth Athletic Ctr. v. City of National City, 220 Cal. App. 4th 1385, 1428, 164 Cal. Rptr. 3d 644 (2013) (holding that agency did have constructive possession of records in consultant’s files and thus was obligated to seek to obtain them in response to CPRA request); cf. Anderson-Barker v. Superior Court, 31 Cal. App. 5th 528, 539-30, 242 Cal. Rptr. 3d 724 (2019) (holding that contractual right to access data in possession of third party does not equate to a right to control that data as required to establish constructive possession under the CPRA); Regents of Univ. of Cal. v. Superior Court, 222 Cal. App. 4th 383, 405-07, 166 Cal. Rptr. 3d 166 (2013) (rejecting constructive possession argument where university did not prepare, own, use, or retain individual investment fund information held by private investment companies on behalf of UC Regents).
The definition of public records has been held not to include a database compiled and maintained by county public defender's office which primarily consisted of information from client files, as well as public records, because the core function of the records was to aid the public defender's office in representing indigent clients, which was a private function, not public. Coronado Police Officers Ass'n v. Carroll, 106 Cal. App. 4th 1001, 1008, 131 Cal. Rptr. 2d 553 (2003). Moreover, records maintained by a county auditor-controller for the court pursuant to contract whereby the county manages the court's budgetary and financial matters and where the contract provided that all documents shall remain the property of the court were held to fall outside the provisions of the CPRA as the courts are not subject to the CPRA. Orange Cty. Emps. Ass'n v. Superior Court, 120 Cal. App. 4th 287, 209, 15 Cal. Rptr. 3d 201 (2004). But see Crews v. Superior Court, 31 Med. L. Rptr. 1890 (Cal. App. Ct. 2003, unpublished) (holding that records used and retained by county in managing the court's finances pursuant to contract fell within the definition of public records and were required to be disclosed under CPRA).
"'Public records' in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975." Cal. Gov't Code § 7920.530(b).
The CPRA defines "writing" as "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, including letters, words, pictures, sounds, or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 7920.545. The format of information is generally not determinative of its public record status. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013). For example, in Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007), the California Supreme Court stated that information stored in a computer database containing peace officer names, employing agency and employment dates qualified as a “writing” because “that term is defined broadly to include every ‘means of recording upon any tangible thing any form of communication or representation . . . and any record thereby created, regardless of the manner in which the record has been stored.’” (quoting Gov. Code § [7920.545]).
The CPRA applies to records an agency is legally required to maintain and also to those maintained at the agencies' own discretion and convenience unless a statute specifically provides otherwise. See, e.g., Statewide Homeowners, Inc. v. Williams, 30 Cal. App. 3d 567, 570-71, 106 Cal. Rptr. 479 (1973) (by statute county assessor only required to make accessible those records legally required to be maintained). It also applies to records relating to the public’s business prepared, owned or used by an agency even if the agency does not maintain the records. Cal. Gov't Code § 7920.530; see also City of San Jose, 2 Cal. 5th at 615, 623 (holding emails sent to or from public employees’ private email accounts are public records under the CPRA). The record, however, must be "identifiable" before an agency is required to make it available for inspection or copying. Cal. Gov't Code § 7922.530(a). The test for whether a record is "identifiable" is not the volume of records requested but whether they can be located with reasonable effort. State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1186, 13 Cal. Rptr. 2d 342 (1992) (where court explained that CPRA's identification requirement may not be used by agency to withhold records).
As explained by the California Supreme Court, “reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches;” rather, “the scope of an agency’s search for public records “need only be reasonably calculated to locate responsive records.” City of San Jose, 2 Cal. 5th at 627 (citations omitted).
Computer software developed by a state or local agency is not a public record. Cal. Gov't Code § 7922.585. But see Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (narrowly defining computer software exception as not including mapping data in GIS file format).
The CPRA defines "writing" as "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, including letters, words, pictures, sounds, or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 7920.545. The format of information is generally not determinative of its public record status. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013). The fact that public records may be stored in a computer, for example, does not affect their status as public records. Cal. Gov't Code § 7922.585(d). See, e.g., Comm’n on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (recognizing that information stored in a computer database containing peace officer names, employing agency and employment dates qualified as a “writing” because “that term is defined broadly to include every ‘means of recording upon any tangible thing any form of communication or representation . . . and any record thereby created, regardless of the manner in which the record has been stored.’” (quoting Gov. Code § [7920.545]).
Section 7922.570(a) of the CPRA requires public agencies that have information which constitutes an identifiable public record not otherwise exempt from disclosure that is in an electronic format to make that information available in an electronic format when requested by any person. Cal. Gov't Code § 7922.570(a). See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (discussing former provision of same effect); see, e.g., Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (upholding order requiring disclosure of county GIS basemap data over claims that disclosure would violate Federal Homeland Security Act and that data was exempt under the CPRA’s “catchall” provision of Gov’t Code Section [7922.00]).
Section 7922.570(b)(1) further requires agencies to make the information available in any electronic format in which it holds the information, but does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained." Cal. Gov't Code § 7922.580(c).
The California Supreme Court has recognized that where feasible an agency may be required to produce information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data was held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). But cf. Sander v. Superior Court, 26 Cal. App. 5th 651, 665-67, 237 Cal. Rptr. 3d 276 (2018) (holding request to State Bar of California for individually unidentifiable bar admission records required the creation of new records through data manipulation that involved recoding with new values, and thus was beyond the scope of the CPRA).
The right of access to public records means both the right to inspect records (Cal. Gov't Code § 7922.525) and the right to obtain exact copies of them unless making exact copies is impracticable (Cal. Gov't Code § 7922.530(a)). At least one court has denied a requester's right to copy documents where they were available for inspection at the agency's office and the documents were voluminous (80,000) and costly to print and ship. Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761,110 Cal. Rptr. 257 (1973). But see CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request). In California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998), the court stated:
“A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort." (citations omitted.)
Telephone records are generally public absent specific circumstances justifying their withholding. For example, one California appellate court has held that telephone numbers contained in otherwise disclosed cell phone, home phone and hotel bills of city council members were properly withheld under the deliberative process privilege within the catchall exemption of Section 7922.000 of the Government Code. See Rogers v. Superior Court, 19 Cal. App. 4th 469, 479 23 Cal. Rptr. 2d 412 (1993). The court stated that disclosure of the telephone numbers of individuals with whom council members have spoken “‘was the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the City Council member.” Id. (quoting Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1343, 283 Cal. Rptr. 893, 813 P.2d 240 (1991)). The court’s decision turned in large part on the unfocused nature of the request, which sought “all City-reimbursed telephone records of all City Council members over a one-year period.” Id. at 480.
The fact that public records may be stored in a computer does not affect their status as public records. Cal. Gov't Code § 7922.585(d). Section 7922.570(a) 6253.9 of the CPRA requires public agencies that have information which constitutes an identifiable public record not otherwise exempt from disclosure that is in an electronic format to make that information available in an electronic format when requested by any person. Cal. Gov't Code § 7922.570(a). An earlier statute (Section 6253(b)), which has since been superseded, allowed public agencies to determine the form in which computer data would be made available. See Sierra Club v. Superior Court, 57 Cal. 4th 157, 165, 158 Cal. Rtpr. 3d 639, 302 P.3d 1026 (2013) (discussing provision); see, e.g., Comm’n on Peace Officers Standards and Training v. Superior Court, 42 Cal.4th 278, 288 n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (noting that information stored in commission’s computer database qualified as “writing” within meaning of CPRA); Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (allowing for disclosure of county’s GIS basemap data); Cal. Ops. Att'y. Gen. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA). Section 7922.570(b)(1) further requires agencies to make the information available in any electronic format in which it holds the information. However, release of records in electronic format is not required where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 7927.580(c).
The California Supreme Court has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). But cf. Sander v. Superior Court, 26 Cal. App. 5th 651, 665-67, 237 Cal. Rptr. 3d 276 (2018) (holding request to State Bar of California for individually unidentifiable bar admission records required the creation of new records through data manipulation that involved recoding with new values, and thus was beyond the scope of the CPRA).
Yes, if the information requested is in an electronic format the agency shall make that information available in any electronic format in which it holds the information or, if requested, in a format used by the agency to create copies for its own use or for provision to other agencies. Cal. Gov't Code § 7922.570(b)(1)&(2). If the request is for non-electronic records and the agency also has the information available in electronic format, the agency may inform the requester that the information is also available in electronic format. Cal. Gov’t Code § 7922.570(c). If the information is available in non-electronic format, an agency cannot make the information available only in electronic format. Cal. Gov’t Code § 7922.580(b). Section 7922.580(c) does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 7922.580(c).
Yes, but the agency may require the requester to bear the cost of producing the record if it is one produced only at otherwise regularly scheduled intervals or would require data compilation, extraction or programming to produce. Cal. Gov't Code § 7922.575(b). An agency, however, is not required to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format. Cal. Gov't Code § 7922.580(a). Nor is it required to disclose electronic records where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 7922.580(c).
The California Supreme Court has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).
No. Government Code § 7922.585(d) states: "Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer. Public records stored in a computer shall be disclosed as required by [the CPRA]." The California Supreme Court has recognized that “[t]he format of information is not generally determinative of the public record status of government information.” Sierra Club v. Superior Court, 57 Cal.4th 157, 165, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013); see also Commission on Peace Officers Standards and Training v. Superior Court, 42 Cal. 4th 278, 288, n.3, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (noting that information stored in commission’s computer database qualified as “writing” within meaning of CPRA); Cal. Ops. Att'y. Gen. 04-1105 (2005) (parcel boundary map data maintained by county assessor in an electronic format is disclosable in that format under CPRA).
The California Supreme Court recognized that an agency even may be required to produce records in non-native formats (i.e., move electronic data to a spreadsheet) if doing so would facilitate redaction and anonymizing for privacy purposes where the native format does not accommodate such manipulations. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).
Section 7922.545(a) of the CPRA allows an agency to post on its website public records and direct a requester seeking to inspect such records to its website in lieu of allowing inspection of public records at its offices. However, if the requester is unable to access the site or download the records, the agency must promptly provide a copy of the public records to the requester upon request. Cal. Gov’t Code § 7922.545(b).
Emails are public records by definition. See Cal. Gov’t Code § 7920.545; see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017) (holding emails sent to or from public employees’ private email accounts relating to official agency business are public records under the CPRA).
Text messages relating to official agency business, though not specifically included in the CPRA’s definition of public records or writings, constitute “writings” under the CPRA as they fall within “every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Cal. Gov’t Code § 7920.545. To the extent such writings contain information relating to the public’s business and are within the constructive possession of the public agency, public official or individual public employee they are by definition a public record. Cal. Gov’t Code § 7920.530.
Social media posts, to the extent relating to official government business and within the constructive possession of public agencies, public officials or individual public employees, constitute “writings” under the CPRA as they fall within “every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Cal. Gov’t Code § 7920.545.
“Computer software developed by a state or local agency is not itself a public record under this chapter. The agency may sell, lease, or license the software for commercial or noncommercial use.” Cal. Gov’t Code § 7922.585(b). “‘Computer software’ includes computer mapping systems, computer programs, and computer graphics systems.’” Id. § 7922.585(a). “Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer.” Id. § 7922.585(d).
In 2013, the California Supreme Court was called upon to decide “whether the statutory exemption for ‘[c]omputer software’ (§ 7922.585(b))—a term that ‘includes computer mapping systems’ (§ 7922.585(a))—encompasses mapping data in a GIS file format . . . or only GIS mapping software . . . .” See Sierra Club v. Superior Court, 57 Cal. 4th 157, 176, 158 Cal. Rptr. 639, 302 P.3d 1026 (2013). In rejecting the argument that computer mapping systems includes the databases underlying the mapping software since it enables a database to function as part of a computer mapping system, the court relied on the ordinary meaning of the statute’s text and the interpretative mandates of the California Sunshine Amendment. Id. at 171, 175. To the extent the term “computer mapping systems” was ambiguous, the court said “the constitutional cannon requires us to interpret it in a way that maximizes the public’s access to information . . . .” Id. at 175. Applying these principles, the court held that a parcel database in GIS file format was not within Section [7922.585(b)’s] exclusion for computer software from the definition of public records under the CPRA. Id. at 176.
The CPRA does sometimes require agencies to construct records for public release. Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 502, 263 Cal. Rptr. 3d 124 (2020). However, an agency need not produce “new substantive content to respond to a PRA request” nor must it “draft summary or explanatory material, perform calculations on data, or create inventories of data in response to a records request.” Id. The Court, for example, has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). But cf. Sander v. Superior Court, 26 Cal. App. 5th 651, 665-67, 237 Cal. Rptr. 3d 276 (2018) (holding request to State Bar of California for individually unidentifiable bar admission records required the creation of new records through data manipulation that involved recoding with new values, and thus was beyond the scope of the CPRA).
Section 7922.530(a) of the CPRA provides that "each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable." Cal. Gov't Code § 7922.530(a).
With respect to paper records, "direct costs" has long been understood to cover “‘the cost of running the copy machine, and conceivably also the expense of the person operating it’ while excluding any charge for ‘the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.’” Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 493, 263 Cal.Rptr. 3d 124 (2020) (citing County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1336, 89 Cal. Rptr. 3d 374 (2009) (quoting N. Cty. Parents Org. v. Dep’t of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994) (rejecting department’s attempt to recover staff time)); see also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 237, 182 Cal. Rptr. 3d 526 (2015).
With respect to electronic records, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 7922.575(a). Direct costs here presumably mean the cost of the disk. However, under the CPRA a requester may be required to bear the additional cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with subdivisions (a) and (b) of Section 7922.570, the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 7922.575(b).
The California Supreme Court has held that extraction under this section includes the cost of “retrieving responsive data from an unproducible government database,, but the term “does not cover every process that might be colloquially described as ‘taking information out.’ It does not, for example, cover time spent searching for responsive records in an email inbox or a computer’s document folders… nor … does ‘extraction’ cover the cost of redacting exempt data from otherwise producible electronic records.” Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 506, 263 Cal. Rptr. 3d 124 (2020)(holding that [Section 7922.575(b)] does not provide a basis for charging requesters for the costs of redacting government records kept in electronic format, including the costs associated with redacting police body camera video footage) ; Ops. Cal. Att'y. Gen. 04-1105 (2005) (where request for parcel map data was made at time other than when data is periodically produced, charge could include cost to construct the record, cost of programming and computer services, but not expenses associated with initial gathering of information or with initial conversion or maintenance of information in electronic format).
Section 7922.530(a) of the CPRA provides that absent a statute authorizing a different fee, an agency may charge an amount that covers only the “direct costs of duplication.” Cal. Gov't Code § 7922.530(a). Thus, a statute which establishes a fee or provides authority to an agency to determine the charges for its records prevails over the CPRA.
For example, under California Vehicle Code Section 1811, the Department of Motor Vehicles has statutory authority to charge flat fees for its records. Shipper v. Dep’t of Motor Vehicles, 161 Cal. App. 3d 1119, 1127, 208 Cal. Rptr. 13 (1984). Similarly, under Government Code Section 27366, a county (through its board of supervisors) is required to adopt fees “in an amount necessary to recover the direct and indirect costs of providing the product or services or the cost of enforcing any regulation for which the fee or charge is levied.” Cal. Gov’t Code § 27366. As applied to the provision of public records, this section has been interpreted as requiring counties to charge fees sufficient to recover “overhead and other operating costs not specifically associated with the actual production of copies.” Cal. Pub. Records Research, Inc. v. Cty. of Yolo, 4 Cal. App. 5th 150, 173, 209 Cal. Rprt. 26 (2016); see also Cal. Pub. Records Research, Inc. v. Cty. of Alameda, 37 Cal. App. 5th 800, 810-12, 249 Cal. Rptr. 3d 828 (2019) (upholding in ordinary mandamus action county’s charge of $3.50 per page fee for copies of official records that included indirect costs of producing records); 85 Ops. Cal. Att'y. Gen. 225 (2002) (a county board of supervisors has statutory authority to charge a fee for a copy of a public record that exceeds the direct cost of duplication provided amount does not exceed that reasonably necessary to recover cost of providing the copy).
Agencies also may require requesters to pay the direct cost associated with transmitting public records via email. Cal. Gov't Code § 11104.5(b). No case has interpreted this provision, and generally agencies do not charge for e-mailing responsive documents.
Unlike the fee provision for copying public records, the CPRA contains no fee provision for inspecting records. Cal. Gov't Code § 7922.525(a).
The CPRA contains no provision for fee waivers; however, agencies may reduce or waive fees under the discretionary authority granted agencies under the CPRA to adopt requirements that provide greater access than the minimum standards set forth in the CPRA. Cal. Gov't Code § 7922.505; see also N. Cty. Parents Org. v Dep’t of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994) (where court held agency had discretionary authority under the act to reduce or waive fee for duplicating public records).
Section 7922.530(a) of the CPRA provides that unless otherwise statutorily exempt, an agency shall make public records promptly available to any person "upon payment of fees" covering the direct costs of duplication. Thus, once an agency determines how many pages are requested to be copied, it calculates the total amount due and payment is to be made prior to actual receipt of the copies. Cal. Gov't Code § 7922.530(a).
Yes. Although the CPRA prohibits fees in excess of the "direct costs of duplication," many agencies, especially at the local level, routinely overcharge. More problematic are the charges being sought in connection with electronic records. While costs for compiling or extracting and related programming necessary to produce electronic records not otherwise routinely generated by the agency are allowable under Section 7922.575(b) of the CPRA, such costs have often placed access beyond the reach of most requesters, with agencies often demanding many thousands of dollars for anticipated programming costs. It also has become a new way for agencies bent on nondisclosure to discourage requesters from pursuing their access rights. See, e.g., Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 507, 263 Cal. Rptr. 3d 124 (2020) (recognizing that to interpret “extraction” under [Section 7922.575(b)] as including the costs of redacting electronic records “would make it more difficult for the public to access information kept in electronic format… For many requesters, such costs may be prohibitive. Article I, section 3 of the state Constitution favors an interpretation that avoids erecting such substantial financial barriers to access.”).
It is a violation of the CPRA for an agency to charge more than "the direct cost of duplication," unless a statutory fee provision allows for additional charges. Cal. Gov't Code § 7922.530(a). With respect to electronic records, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 7922.575(a). Direct costs here presumably mean the cost of the disk. However, under the CPRA a requester may be required to bear the additional cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with subdivisions (a) and (b) of Section 7922.570, the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 7922.575(b).
The California Supreme Court has held that extraction under this section includes the cost of “retrieving responsive data from an unproducible government database”, but the term “does not cover every process that might be colloquially described as ‘taking information out.’ It does not, for example, cover time spent searching for responsive records in an email inbox or a computer’s document folders… nor … does ‘extraction’ cover the cost of redacting exempt data from otherwise producible electronic records.” Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 506, 263 Cal. Rptr. 3d 124 (2020)(holding that [Section 7922.575(b)] does not provide a basis for charging requesters for the costs of redacting government records kept in electronic format, including the costs associated with redacting police body camera video footage); ; Ops. Cal. Att'y. Gen. 04-1105 (2005) (where request for parcel map data was made at time other than when data is periodically produced, charge could include cost to construct the record, cost of programming and computer services, but not expenses associated with initial gathering of information or with initial conversion or maintenance of information in electronic format). See also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015) (discussing burden of authorized fees to produce electronic records within context of public interest balancing test of CPRA).
Under Section 7923.000 of the CPRA, "[a]ny person may institute proceedings for injunctive or declaratory relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." Cal. Gov't Code § 7923.000. The plain meaning of this provision "contemplates a declaratory relief proceeding commenced only by an individual or entity seeking disclosure of public records, and not by the public agency from which disclosure is sought." Filarsky v. Superior Court, 28 Cal. 4th 419, 426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002) (city may not initiate ordinary declaratory relief action to determine its obligation to disclose records to a member of the public as CPRA provides exclusive means for litigating question of whether records must be disclosed).
The CPRA does not appear to permit the California Attorney General to initiate enforcement proceedings against a public agency to disclose public records unless the Attorney General has been denied access to public records.
County district attorneys may petition a court to require a state or local agency to allow them to inspect or receive copies of public records not otherwise exempt from disclosure when the agency fails to allow inspection or copying within 10 working days of a request. Cal. Gov’t Code § 7921.705.
Local ordinances governing access to public meetings and public records (commonly referred to as sunshine ordinances) often designate a particular information officer or other employee to field complaints regarding CPRA and Brown Act violations. Aggrieved individuals should ascertain whether their municipality has a sunshine ordinance and, if so, whether the ordinance designates such an individual.
Local ordinances governing access to public meetings and public records (commonly referred to as sunshine ordinances) often provide for administrative review of agency decisions, though determinations are generally recommendatory and unenforceable. Aggrieved individuals should ascertain whether their municipality has a sunshine ordinance and, if so, what procedures are provided for review of agency denials. Some state agencies may also have similar procedures for review of agency denials.
The CPRA does not provide for sanctions for an agency's noncompliance with its disclosure obligations. Reasonable attorneys' fees and costs are mandatory to the prevailing plaintiff under Section 7923.115(a), however. If an agency fails to obey a court order requiring disclosure of public records, contempt sanctions may be imposed, following a hearing on an order to show cause. Cal. Gov't Code § 7923.100.
Within 10 days of receipt of a CPRA request, each agency is obligated to “determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons thereof.” Cal. Gov’t Code § 7922.535. This provision necessarily requires the agency to search for public records in order to make the determination. However, a request that “requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome.” Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998) (quotation omitted). “Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the records can be located with reasonable effort.” Id.; see, e.g., CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request).
The CPRA does not require public agencies to post public records to their websites. However, a public agency may comply with a request to inspect public records under Section 7922.525(a) of the Government Code by posting the record on its website and directing the requester to the location on the website where the public record is posted. Cal. Gov’t Code § 7922.545(a)s unable to access the record or copy it, the agency must make copies available to the requester upon request. Id. § 7922.545(b).
Local agencies, other than school districts, that post “open data” documents to their websites, are required to make those records accessible in an open format that meets specific requirements intended to ease use and public accessibility of the records. See Cal. Gov’t Code § 7922.680. These requirements include that the record be retrievable, downloadable, indexable and electronically searchable, and be available to the public free of charge. Id.
Local agencies, except school districts, also are required, with certain exceptions, to create and post on their websites, if they have one, a catalog of “enterprise systems” utilized by the agency. Cal. Gov’t Code § 7922.710(a). “Enterprise systems” are defined as “a software application or computer system that collects, stores, exchanges, and analyzes information that the agency uses that is both of the following. ¶(A) A multidepartmental system or system that contains information collected about the public. ¶ (B) A system of record.” Id. § 7922.700(a). A “system of record” is further defined as a system that “serves as an original source of data within an agency.” Id. § 7922.705.
The CPRA is silent on the obligation to retain public records. However, several other statutes govern the management, retention and destruction of state and local agency records.
At the state level, the State Records Management Act (Government Code sections 12270-12279) directs the California Secretary of State to establish and administer a records management program that includes, among other things, management methods regarding disposal of state records. Cal. Gov’t Code §§ 12270-12279. Section 12275 of the Act provides that “[a] record shall not be destroyed or otherwise disposed of by an agency of the state, unless it is determined by the Secretary of State that the record has no further administrative, legal, or fiscal value and the Secretary of State has determined that the record is appropriate for preservation in the State Archives.” Cal. Gov’t Code § 12275. Under the Act, each agency must establish and maintain a records retention schedule that details the public records the agency will keep, how the records will be managed, and how the agency will legally dispose of non-permanent records. Id. § 12274.
The California State Records and Information Management Program (“CalRIM”), a state records program with the State Archives, assists agencies with, among other things, establishing record retention schedules. See Records and Information Management Program (CalRIM).
At the local level, cities are required to retain any record that is less than two years old. Cal. Gov’t Code § 34090. Notwithstanding this requirement, records of “routine video monitoring” may be destroyed after one year and recordings of telephone and radio communications may be destroyed after 100 days, provided the destruction is approved by the legislative body and the written consent of the agency attorney is obtained. Id. § 34090.6. Duplicates of city records less than two years old may be destroyed if they are no longer required. Id. § 34090.7. Further, “video recording media, including recordings of ‘routine video monitoring’ . . . shall be considered duplicate records if the city keeps another record, such as written minutes or an audio recording, of the event that is recorded in the video medium. However, a video recording medium shall not be destroyed or erased pursuant to this section for a period of at least 90 days after occurrence of the event recorded thereon.” Id.
Except where exempt by express provisions of law, an agency is required to make records promptly available to any person upon receipt of a request that “reasonably describes an identifiable record or records . . . .” Cal. Gov’t Code § 7922.530(a). “However, the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought.” Getz v. Superior Court, 72 Cal. App. 5th 637, 650, 287 Cal. Rptr. 3d 722 (2021). In Getz, the court rejected a county’s argument that the request was “overbroad and unreasonable” where the county produced an index to the requester of 42,582 e-mails responsive to the request, thus demonstrating “that the records could be located with reasonable effort and the volume of material was not unmanageable.” Id. at 651. See also CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (even if it would cost the Department of Social Services approximately $43,000 to compile accurate list of every individual granted criminal conviction exemption to work in licensed day care facility and identity of each facility employing such individuals, cost was not valid reason to deny CPRA request).
At least one court has denied a requester's right to copy documents where they were available for inspection at the agency's office and the documents were voluminous (80,000) and costly to print and ship. Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761,110 Cal. Rptr. 257 (1973). Similarly, "[a] clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. [citations omitted] Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort." Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998).
Additionally, courts have recognized that the cost and effort of producing public records is a factor that may be considered under Section 7922.000’s public interest balancing test. See, e.g., Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 508, 263 Cal. Rptr. 3d 124, 464 P.3d 594 (2020) (“[Section 7922.000] speaks broadly of the ‘public interest,’ a phrase which encompasses public concern with the cost and efficiency of government.”); N. Cty. Parents Org. v. Dep’t of Ed., 23 Cal. App. 4th 144, 151-52, 28 Cal. Rptr. 2d 359 (1994) (“A court performing this balancing test is authorized to take into account any expense and inconvenience involved in segregating non-exempt from exempt information, because the statutory term ‘public interest’ ‘encompasses public concern with the cost and efficiency of government.’” (citation omitted)); Fredricks v. Superior Court, 233 Cal. App. 4th 209, 228, 182 Cal. Rptr. 3d 526 (2015) (quoting N. Cty. Parents Org.).
The CPRA sets merely the “minimum standard” public agencies must meet for disclosing public records. “Except as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter.” Cal. Gov’t Code § 7922.505; see also N. Cty. Parents Org. v. Dep’t of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). Thus, the exemptions for the most part are discretionary on the part of the agency.
The CPRA is modeled after the federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1038, 221 Cal. Rptr.3d 832, 400 P.3d 432 (2017); Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991); Los Angeles Unified Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 238, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 818, 26 Cal. Rptr. 3d 92 (2005); Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 823-24, 108 Cal. Rptr 2d 870 (2001). Accordingly, federal “legislative history and judicial construction of the FOIA . . . ‘serve to illuminate the interpretation of its California counterpart.’” Los Angeles Unified Sch. Dist., 288 Cal. App. 4th at 238 (quoting Times Mirror, 53 Cal. 3d at 1338); see also Cal. State Univ., 90 Cal. App. 4th at 823-24. But see Williams v. Superior Court, 5 Cal. 4th 337, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993) (where court rejected the application of FOIA standards in interpreting the investigatory records provisions of [Sections 7923.610 and 7923.615(a)] of the Government Code).
The CPRA contains specific statutory exemptions, and one general or “catchall” exemption. This “catchall” exemption applies where, on the facts of a particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." Cal. Gov’t Code § 7922.000. See Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal. 4th 319, 329, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007) (describing nature of exemptions under CPRA).
In general, however, unless an express statutory provision makes the record exempt, it must be disclosed. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rptr. 3d 274, 389 P.3d 848 (2017); Sander v. State Bar of Cal., 58 Cal. 4th 300, 323, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013); Int’l Fed’n, 42 Cal. 4th at 329; Comm’n on Peace Officer Standing and Training v. Superior Court, 42 Cal. 4th 278, 288, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007).
Exemptions are to be narrowly construed and public agencies bear the burden of proving that an exemption applies. Long Beach Police Officers Ass’n. v. City of Long Beach, 59 Cal. 4th 59, 67, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014); Int’l Fed’n, 42 Cal. 4th at 329; Los Angeles Unified Sch. Dist., 228 Cal. App. 4th at 239; Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 89 Cal. Rptr. 3d 374 (2009); BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 756, 49 Cal. Rptr. 3d 519 (2006); Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004), Cal. State Univ., 90 Cal. App. 4th at 831.
Importantly, the constitutional Sunshine Amendment mandates that "[a] statute, court rule or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." Cal. Const. art. I, § 3(b)(2); see Sierra Club v. Superior Court, 57 Cal. 4th 157, 175, 158 Cal. Rprt. 639, 302 P.3d 102 (2013) (stating that to extent statutory language is ambiguous, “the constitutional cannon requires us to interpret it in a way that maximizes the public’s access to information . . . .”); see also ACLU v. Superior Court, 3 Cal. 5th 1032, 1039, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017); City of San Jose, 2 Cal. 5th at 616-17. The Amendment also requires that any new exemption adopted after the effective date of the Sunshine Amendment must be adopted "with findings demonstrating the interest protected by the limitation and the need for protecting that interest." Cal. Const. art. I, § 3(b)(2).
Public agencies cannot deny access merely because portions of a public record contain exempt information. Rather, "[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." Cal. Gov't Code § 7922.525(b); see also Comm’n on Peace Officer Standing and Training, 42 Cal. 4th at 301-02; Am. Civil Liberties Union Found. v. Deukmejian, 32 Cal. 3d 440, 453 n.13, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); N. Cal. Police Practices Project v. Craig, 90 Cal. App. 3d 116, 124, 153 Cal. Rptr. 173 (1979).
Public agencies may also waive exemptions by voluntarily disclosing a record otherwise exempt from disclosure by statute. Specifically, Section 7921.505(b) provides, in pertinent part, "if a state or local agency discloses to a member of the public a public record that is otherwise exempt from this division, this disclosure constitutes a waiver of the exemptions specified in; (1) The provisions listed in Section 7920.505. ¶ (2) Sections 7924.510 and 7924.700.¶ (3) Other similar provisions of law.”
The California Supreme Court has interpreted this statute as requiring an intentional disclosure of a public record to a member of the public to constitute a waiver; inadvertent disclosure was held not to constitute a waiver of the attorney-client privilege. See Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1189, 199 Cal. Rptr. 3d 743, 366 P.3d 996 (2016); see generally Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321-22, 89 Cal. Rptr. 3d 374 (2009) (“‘Disclosure to one member of the public would constitute a waiver of the exemption, requiring disclosure to any other person who requests a copy.’” (citations omitted)); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999); Vallejos v. Cal. Hwy. Patrol, 89 Cal. App. 3d 781, 152 Cal. Rptr. 846 (1979).
There are, however, several statutory exceptions to waiver. See Cal. Govt Code § 7921.505(c)(1)-(10); Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 240, 128 Cal. Rptr. 2d 234 (2002) (no waiver for interagency disclosures made in confidence); Michael P. v. Superior Court, 92 Cal. App. 4th 1036, 1048, 113 Cal. Rptr. 2d 11 (2001) (same).
Where a specific statute barred a county from disclosing vehicle impoundment forms, which contain owner address information, the county’s practice of disclosing addresses to towing companies to facilitate notice to owners of vehicle impoundment was held not to constitute a waiver under Section 7921.505(b). See Cty. of Los Angeles v. Superior Court, 242 Cal. App. 4th 475, 195 Cal. Rptr. 3d 110 (2015).
Specific Exemptions Under Section 7920.505(a).
Section 7920.505(a) lists specific exemptions from disclosure previously found under former Section 6254. These exemptions are permissive, not mandatory. See Cal. Gov’t Code § 7921.500. . These exemptions are listed in Section 7920.505(a) as subdivision (1) through subdivision (32), and are set forth in full under various chapters of Part 5 of Div. 10 of the Government Code, which is now organized by record type.
Below is the text of the main exemptions listed under Section 7920.505(a), in the order that they now appear under that section and under Part 5 of Division 10 of the Government Code, and commentary thereon. Note, this is not a full list of each exemption under the CPRA.
Crimes, Weapons, and Law Enforcement (Ch. 1 of Part 5 of Div. 10).
(a) Except as provided in Section 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.
(b) A customer list that an alarm or security company provides to a state or local police agency at the agency’s request is a record subject to this article.
Section 7923.610: Notwithstanding any other provision of this article, a state or local law enforcement agency shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(a) The full name and occupation of every individual arrested by the agency.
(b) The individual's physical description including date of birth, color of eyes and hair, sex, height and weight.
(c) The time and date of arrest.
(d) The time and date of booking.
(e) The location of the arrest.
(f) The factual circumstances surrounding the arrest.
(g) The amount of bail set.
(h) The time and manner of release or the location where the individual is currently being held.
(i) All charges the individual is being held upon, including any outstanding warrants from other jurisdictions, parole holds, and probation holds.
(a)(1) Notwithstanding any provision of this article, a state or local law enforcement agency shall make public the information described in paragraph (2), except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.
(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, paragraph (1) applies to the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded:
(A) The time, date, and location of occurrence.
(B) The time and date of the report.
(C) The name and age of the victim.
(D) The factual circumstances surrounding the crime or incident.
(E) A general description of any injuries, property, or weapons involved.
(b)(1) The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of, or former Section 288a of, the Penal Code [various sex crimes] may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor.
(2) When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this article may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this section.
(c)(1) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete.
(2) For purposes of this article, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.
(a) Notwithstanding any other provision of this article, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code, a state or local law enforcement agency shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) Subject to the restrictions of Section 841.5 of the Penal Code and this article, the current address of every individual arrested by the agency.
(2) Subject to the restrictions of Section 841.5 of the Penal Code and this article, the current address of the victim of a crime. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 287, 288, 288.2, 288.3, 2.88.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of, or former Section 288a of, the Penal Code shall remain confidential.
(b) Address information obtained pursuant to this section shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury.
(c) This section shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this section.
Comment: These provisions comprise the cumbersome “investigatory records” exemption and are among the most litigated exemptions of the CPRA. It is with investigatory records of law enforcement agencies that the public's right to access is the most limited. Unlike other exemptions under the CPRA, which simply set forth discretionary exemptions, the investigatory records exemption contains three categories of information: that which an agency may withhold, that which must be disclosed and that which is expressly exempt from the mandatory disclosure provisions. See Williams v. Superior Court, 5 Cal. 4th 337, 349, 852 P.2d 377, 19 Cal. Rptr. 2d 882 (1993). Under this exemption, unless the requester has a specific interest in the investigatory report (such as being the victim), an agency may, in the exercise of its discretion, withhold the actual records pertaining to its investigatory functions, but it must extract specific information from those records and make that information available to the public.
Aside from legislation enacted in 2019 governing recordings of law enforcement involving critical incidents, see below, the rights of access to investigatory records and files historically has been restrictive. In 1993, the California Supreme Court decided the first in a series of cases that generally have limited the public's right of access to investigatory records and files. In Williams, a newspaper waited until after the completion of a criminal prosecution before requesting copies of criminal investigation records. Although there was no pending criminal investigation, the California Supreme Court held that unlike the Federal Freedom of Information Act ("FOIA") investigatory records exemption, which does not exempt records of closed investigations, the CPRA exemption “does not terminate with the conclusion of the investigation.” Id. at 361-62. Moreover, the court explained that “[o]nce an investigation . . . has come into being because there is a concrete and definite prospect of enforcement proceedings at that time, material that relate to the investigation and, thus, properly belong in the file, remain exempt subject to the terms of the statute.” Id. In rejecting FOIA standards for interpreting [Section 7923.600(a)], the Williams court limited access to investigatory records by holding that the public has a statutory right of access only to that information which is set forth with particularity in [Sections 7923.610 and 7923.615], as long as the disclosure of that information would not endanger the safety of an individual involved in the investigation or would not jeopardize the successful completion of the investigation or a related investigation. Id. at 354; see also Rivero v. Superior Court, 54 Cal. App. 4th 1048, 63 Cal. Rptr. 2d 213 (1997) (where court held district attorney's investigatory file in concluded investigation was not subject to disclosure under the CPRA, and city's sunshine laws, which allowed for disclosure of closed investigation files, had to yield to state statute prohibiting interference with district attorney's investigatory and prosecutorial functions).
While the prospect of law enforcement must be “concrete and definite” before investigatory files may be withheld under the exemption, this standard was held inapplicable to investigatory records, which have an independent claim to exempt status under the statute. In holding as exempt from disclosure citizen reports and police radio calls following a routine police stop that resulted in no arrest, the California Supreme Court in Haynie v. Superior Court, 26 Cal. 4th 1061, 1070, 112 Cal. Rptr. 2d 80, 31 P.3d 760 (2001), reasoned that limiting the exemption “only to records of investigations where the likelihood of enforcement has ripened into something concrete and definite would expose to the public the very sensitive investigative stages of determining whether a crime has been committed or who has committed it."
But [Section 7923.600’s] exemption for records of investigation was given a narrow construction by the California Supreme Court in ACLU v. Superior Court, 3 Cal. 5th 1032, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). There, the court was confronted with the issue of whether automatic license plate reader data collected by law enforcement over a one-week period was exempt as “records of . . . investigations” under [Section 7923.600] of the Government Code. The court held that the exemption for records of investigations did not include the indiscriminate collection of bulk data “of hundreds or thousands of individuals simultaneously;” rather, it applies to targeted inquiries into particular violations of law. Id. at 1040, 1042. The court’s narrow construction was largely informed by the California Sunshine Amendment’s constitutional mandate that exemptions be narrowly construed. Id. at 1042. It was also informed by common sense: “It is hard to imagine that the Legislature intended for the records of investigations exemption to reach the large volume of date that plate scanners and other similar technologies now enable agencies to collect indiscriminately.” Id. at 1041. Because disclosure of unredacted data nevertheless implicated privacy concerns, the court remanded with directions to consider methods of anonymizing the data in conducting a balancing analysis. Id. at 1044, 1046.
To be exempt, the investigatory, security, intelligence or complaint records must be compiled by the agency for correctional, law enforcement or licensing purposes. See, e.g., Uribe v. Howie, 19 Cal. App. 3d 194, 112-13, 96 Cal. Rptr. 493 (1971) (where court held that county agricultural commissioner could not withhold mandatory reports filed by farmers who had sprayed pesticides in the area by labeling the files investigatory for licensing purposes when licensing was not the primary purpose for which the files were compiled and when the files were not being used for investigation purposes at the time of trial).
Other cases have defined the exemption broadly. For example, in Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009), the court held that an autopsy report produced by a coroner’s inquiry into a suspected homicide where there exists a definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of [Section 7923.600]. In so holding, the court recognized that a coroner’s office that compiles investigatory files for law enforcement purposes is entitled to assert the exemption even if it is not itself the police or law enforcement agency since it is an “other . . . local agency” that compiled the files for “law enforcement . . . purposes.” Id.
Similarly defining the exemption broadly, the court in State Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 709, 117 Cal. Rptr. 3d 388 (2010), stated that investigatory materials underlying a public report of the Office of Inspector General into the Department of Corrections and Rehabilitation’s parole supervision of a defendant charged with kidnapping, raping and holding hostage for 18 years a female minor were exempt as “investigatory files compiled by a state agency for correctional purposes.” Because the underlying investigation of the parole supervision carried with it the possibility of criminal prosecution, the court said the prospect of “enforcement proceedings was concrete and definite when the investigation was launched.” Id. at 709-10.
Also in Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002), the court held that a letter prepared by the district attorney after the conclusion of its investigation of alleged police misconduct and which contained the DA's conclusions fell within the investigatory records exemption because the statute contains no exception for post-investigation records and because the letter related exclusively to the investigation.
The courts have diverged on the scope of an agency’s obligations to provide information under Sections 7923.610 (arrest information) and 7923.615 (complaints and requests for assistance). In County of Los Angeles v. Los Angeles Superior Court (Kusar), 18 Cal. App. 4th 588, 599, 22 Cal. Rptr. 2d 409 (1993), the court held that disclosure of arrest information under [Section 7923.610] was limited to current information pertaining to contemporaneous police activity and did not apply to a request for arrest information of two police officers going back ten years.
More recently, with respect to arrest information, the court in Kinney v. Superior Court, 77 Cal. App. 5th 168, 177-78, 292 Cal. Rptr. 3d 392 (2022), applied the Kusar court’s “contemporaneous” limitation to a request for the names of those arrested for DUIs during a one month period in 2020, which information at the time of the request was 11 to 12 months old. Given the purpose of the disclosure provisions of [Section 7923.610] to provide “contemporaneous disclosure of individualized arrest information in order to prevent secret arrests,” the court reasoned that “[a]fter 11 to 12 months, we do not see how releasing the arrestees’ name would serve the purpose of preventing clandestine police activity.” Id. at 181.
However, with respect to information pertaining to calls for assistance under Section 7923.615, the court in Fredericks v. Superior Court, 233 Cal. App. 4th 209, 233-34, 182 Cal. Rptr. 3d 526 (2015), rejected the Kusar court’s “contemporaneous” time limitations when construing [Section 7923.615’s] disclosure obligations pertaining to complaints and calls for assistance. There, the requester sought complaint information over a six-month period but the police department limited its response to 60 days. Id. at 216. Discussing Kusar, the court noted that the statutory language the court had relied on in determining legislative intent—language that limited disclosure of arrestee and victim address information to current addresses—had since been eliminated from the statute, and that unlike in Kusar there was no clear attempt by the requester to evade discovery procedures through use of the CPRA. Id. at 233-34. Nor were the disclosure concerns the same under the two [Sections], as the court noted. Id. at 233. More practically, the court said that “[t]here was no basis in the plain language of the statute to read into it any 60-day limitation on access to disclosable information.” Id. at 234. While discussing different provisions governing the disclosure obligations pertaining to law enforcement records, it appears the rationale of the Frederick’s court is irreconcilable with the court’s holding in Kinney given that the applicable statutes share the same legislative history and relevant amendments thereto.
The United States Supreme Court has upheld the facial constitutionality of [Section 7923.620], which allows for the disclosure of the current address of arrestees and victims of crimes to authorized individuals for specified purposes, but precludes disclosure for commercial purposes. See Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 120 S.Ct. 483, 488, 145 L.Ed. 2d 451 (1999). The United States Supreme Court, however, noted that the constitutionality of the provision as applied to respondent, a publishing company that provides the names and addresses of arrested individuals to its customers, remained open on remand. See United Reporting Publ’g Corp. v. Cal. Hwy. Patrol, 231 F.3d 483 (9th Cir. 2000).
It is important to note that each piece of information requested that is enumerated in Sections 7923.610 and 7923.615 must be considered and analyzed separately by the agency. A law enforcement agency, like any other agency subject to the provisions of the CPRA, bears the burden of justifying its refusal to disclose otherwise public records with regard to each separate piece of information requested (i.e., name, the factual circumstances surrounding the arrest, the charges, etc.).
Notwithstanding any other provision of this article, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subdivision (e), may be withheld only as follows:
(a)(1) During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure pursuant to this paragraph, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.
(2) After 45 days from the date the agency knew or reasonably should have known about the incident, and up to one year from that date, the agency may continue to delay disclosure of a recording if the agency demonstrates that disclosure would substantially interfere with the investigation. After one year from the date the agency knew or reasonably should have known about the incident, the agency may continue to delay disclosure of a recording only if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation. If an agency delays disclosure pursuant to this paragraph, the agency shall promptly provide in writing to the requester the specific basis for the agency’s determination that the interest in preventing interference with an active investigation outweighs the public interest in disclosure and provide the estimated date for the disclosure. The agency shall reassess withholding and notify the requester every 30 days. A recording withheld by the agency shall be disclosed promptly when the specific basis for withholding is resolved.
(b)(1) If the agency demonstrates, on the facts of the particular case, that the public interest in withholding a video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording and may use redaction technology, including blurring or distorting images or audio, to obscure those specific portions of the recording that protect that interest. However, the redaction shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording and the recording shall not otherwise be edited or altered.
(2) Except as provided in paragraph (3), if the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction as described in paragraph (1) and that interest outweighs the public interest in disclosure, the agency may withhold the recording from the public, except that the recording, either redacted as provided in paragraph (1) or unredacted, shall be disclosed promptly, upon request, to any of the following:
(A) The subject of the recording whose privacy is to be protected, or their authorized representative.
(B) If the subject is a minor, the parent or legal guardian of the subject whose privacy is to be protected.
(C) If the subject whose privacy is to be protected is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative of the deceased subject whose privacy is to be protected.
(3) If disclosure pursuant to paragraph (2) would substantially interfere with an active criminal or administrative investigation, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation, and provide the estimated date for the disclosure of the video or audio recording. Thereafter, the recording may be withheld by the agency for 45 calendar days, subject to extensions as set forth in paragraph (2) of subdivision (a).
(c) An agency may provide greater public access to video or audio recordings than the minimum standards set forth in this section.
(d) For purposes of this section, a peace officer does not include any peace officer employed by the Department of Corrections and Rehabilitation.
(e) For purposes of this paragraph, a video or audio recording relates to a critical incident if it depicts any of the following incidents:
(1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(2) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.
(f) This section does not alter, limit, or negate any other rights, remedies, or obligations with respect to public records regarding an incident other than a critical incident as described in subparagraph (e).
Comment: In 2018, the California Legislature enacted AB 748, a landmark transparency bill effective July 1, 2019, that added paragraph (4) to subsection (f) of former Section 6254. This provision is now Section 7923.625 of the recodified CPRA. The bill mandates, with certain exceptions and authorized delays, the disclosure of recordings (e.g., body camera, dash camera footage or other video footage) of critical incidents, defined as (1) incidents involving the discharge of a firearm at a person by a peace officer or custodial officer; or (2) incidents in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury. Cal. Gov’t Code § 7923.625(e)(1)&(2). However, disclosure of “a video or audio recording that was created during the commission or investigation of the crime of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident depicted in the recording” is not required to be disclosed. Cal. Gov’t Code § 7923.750(a). Instead, an agency must justify the withholding of these types of videos or recordings by demonstrating that 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, considering the potential harm to the victim and individual privacy rights. Id. § 7923.750(a) & (b).
Section 7923.800: Except as provided in Section 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of any of the following information contained in an application for a license to carry a firearm, issued by the sheriff of a county or the chief or other head of a municipal police department pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code:
(a) Information that indicates when or where the applicant is vulnerable to attack.
(b) Information that concerns the applicant’s medical or psychological history, or that of members of the applicant’s family.
Section 7923.805: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of the home address or telephone number of any of the following individuals, as set forth in an application for a license to carry a firearm, or in a license to carry a firearm, issued by the sheriff of a county or the chief or other head of a municipal police department pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code:
(b) A public defender.
(c) A peace officer.
(e) A court commissioner.
Comments: These Sections requires the licensing agency to segregate exempt from non-exempt material. See Cal. Gov't Code § 7922.525(b). Except for the information specifically exempted, the remainder of the application should be made available. CBS Inc. v. Block, 42 Cal. 3d 646, 652-53, 725 P.2d 470, 230 Cal. Rptr. 362 (1986). However, even under CBS Inc., information contained in an application that would reveal intimate details of a person's medical or family circumstances may also be deleted prior to release of the record.
Environmental Protection, Building Standards, and Safety Requirements (Ch. 3 of Part 5 of Div. 10).
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of financial data contained in an application for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, if an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration.
(b) The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application which are subject to disclosure under this division.
Comment: If a private party seeks financial assistance from the California Pollution Control Financing Authority in order to implement a pollution control project, the financial information concerning the private party would presumably be exempt from disclosure, while other information would not.
Financial Records and Tax Records (Ch. 4 of Part 5 of Div. 10).
Section 7925.000: Except has provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of information required from any taxpayer in connection with the collection of local taxes if that information is received in confidence and the disclosure of it to other persons would result in unfair competitive disadvantage to the person supplying the information.
Comment: There are no reported cases discussing this exemption.
Section 7925.005: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of a statement of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish the applicant’s personal qualification for the license, certificate, or permit requested.
Comment: This exemption has been interpreted narrowly as not including financial records of a waste disposal company with an exclusive contract with a city. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 779, 192 Cal. Rptr. 415 (1983). In San Gabriel, the court concluded that a contract is not a license and that the legislature intended [Section 7925.005] to be limited to those submitting financial data to a licensing agency. Id.
Section 7925.010: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of any of the following records:
(a) Financial data contained in an application for registration, or registration renewal, as a service contractor, which is filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor's net worth.
(b) Financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor.
Comment: There are no reported cases discussing this exemption.
Health Care (Ch. 5 of Part 5 of Div. 10).
Section 7926.000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclose of a final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Public Health pursuant to subdivision (b) of Section 1282 of the Health and Safety Code.
Comment: A health care facility must transmit a copy of the Joint Commission's report on an inspection of its facility to the state if the commission is simultaneously conducting a quality of care inspection of the facility.
(a) Except as provided in subdivision (b) and in Sections 7924.510, 7924.700, and 7929.610, this division does not require the disclosure of any information that a person provides to the Secretary of State for the purpose of registration in the Advance Health Care Directive Registry.
(b) The information described in subdivision (a) shall be released at the request of a health care provider, a public guardian, or the registrant's legal representative.
Comment: There are no reported cases discussing this exemption.
Section 7926.200: The provisions listed in Section 7920.505 do not prevent any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.C.S. Section 158).
Comment: This section continues the unlabeled last paragraph of former Section 6254 without substantive change.
(a) Nothing in this division or any other provision of law requires disclosure of records of a health plan that is licensed pursuant to the Knox-Keene Health Care Services Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health Care Safety Code) and that is governed by a county board of supervisors, whether paper or records, records maintained in the management information system, or records in any other form, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments, formulae or calculations for these payments, and contract negotiations with providers of health care for alternative rates for a period of three years after the contract is fully executed.
Comment: This section became effective Jan. 1, 2023. Records of health care plans under this section would presumably be public three years after execution.
(a) Except as provided in subdivision (b) or in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4, that relate to a contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 or 11512 of the Insurance Code.
(b) A record described in subdivision (a) shall be open to inspection within one year after the contract is fully executed.
Comment: There are no reported cases discussing this exemption.
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of a state agency related to activities governed by Articles 2.6 (commencing with Section 14081), 2.8 (commencing with Section 14087.5), and 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator's deliberative processes, discussions, communications, or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories or strategy, or that provide instruction, advice or training to employees.
(b)(1) Except for the portion containing the rates of payment, a contract for inpatient services entered into pursuant to one of these articles, on or after April 1, 1984, shall be open to inspection one year after it is fully executed.
(2) If a contract for inpatient services was entered into before April 1, 1984, and amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed.
(3) If the California Medical Assistance Commission enters into a contract with a health care provider for other than inpatient hospital services, the contract shall be open to inspection one year after it is fully executed.
(c) Three years after a contract or amendment is open to inspection under this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.
(d)(1) Notwithstanding any other law, the entire contract or amendment shall be open to inspection by the California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office.
(2) The California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office shall maintain the confidentiality of each contract or amendment until the contract or or amendment is fully open to inspection by the public.
Comment: The statutes cited in Section 7926.220 refer to special negotiators who represent the State in the Medi-Cal program.
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services that relate to activities governed by former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), former Part 6.6 (commencing with Section 12739.5), and former Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) or Part 3.3 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following:
(1) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or the department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement.
(2) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instructions, advice or training to their employees.
(b)(1) Except for the portion that contains the rates of payment, a contract entered into pursuant to former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), former Part 6.6 (commencing with Section 12739.5), or former Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after its effective date.
(2) If a contract was entered into before July 1, 1991, and amended on or after July 1, 1991, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after the effective date of the amendment.
(c) Three years after a contract or amendment is open for inspection pursuant to this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.
(d)(1) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office.
(2) The California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office shall maintain the confidentiality of each contract or amendment until the contract or amendment is open to inspection pursuant to subdivision (c).
Comment: There are no reported cases discussing this exemption.
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, if the records reveal any of the following:
(1) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or department provides, receives, or arranges services or reimbursement.
(2) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, or records that provide instructions, advice or training to employees.
(b)(1) Except for the portion that contains the rates of payment, a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code shall be open to inspection one year after its effective date.
(2) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) or Part 3.3 of Division 9 of, the Welfare and Institutions Code, is amended, the amendment shall be open to inspection one year after the effective date of the amendment.
(c) Three years after a contract or amendment is open to inspection pursuant to this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.
(d)(1) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office.
(2) The California State Auditor’s Office, the Joint Legislative Audit Committee, and the Legislative Analyst’s Office shall maintain the confidentiality of each contract or amendment until the contract or amendment is open to inspection pursuant to subdivision (b) or (c).
(e) The exemption from disclosure provided pursuant to this section for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code.
Comment: There are no reported cases discussing this exemption.
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the Managed Risk Medical Insurance Board that relate to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice or training of employees.
(b) Except for the portion that contains the rates of payment, a contract for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after it has been fully executed.
(c)(1) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the Joint Legislative Audit Committee.
(2) The committee shall maintain the confidentiality of each contract or amendment until the contract or amendment is open to inspection pursuant to subdivision (b).
Comment: There are no reported cases discussing this exemption.
Historically or Culturally Significant Matters (Ch. 6 of Part 5 of Div. 10).
Section 7927.000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any of the following:
(a) Records of Native American graves, cemeteries and sacred places.
(b) Records of Native American places, features, and objects described in Section 5097.9 and 5097.993 of the Public Resources Code, which are maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.
Comment: There are no reported cases discussing this exemption.
Section 7927.005: Nothing in this division requires disclosure of records that relate to archaeological site information and reports maintained by, or in the possession of, the Department of Parks and Recreation, the State Historical Resources Commission, the State Lands Commission, the Native American Heritage Commission, another state agency, or a local agency, including the records that the agency obtains through a consultation process between a California Native American tribe and a state or local agency.
Comments: There are no reported cases discussing this exemption.
Library Records and Similar Matters (Ch. 7 of Part 5 of Div. 10).
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of library circulation records kept for the purpose of identifying the borrower of items available in libraries, and library and museum materials made or acquired and presented solely for reference or exhibition purposes.
(b) The exemption in this section does not apply to records of fines imposed on the borrowers.
Comment: There are no reported cases discussing this exemption.
(a) As used in this section, the term “patron use records” includes both of the following:
(1) Any written or electronic record that is used to identify a library patron and is provided by the patron to become eligible to borrow or use books and other materials. This includes, but is not limited to, a patron’s name, address, telephone number, or email address.
(2) Any written record or electronic transaction that identifies a patron’s borrowing information or use of library information resources. This includes, but is not limited to, database search records, borrowing records, class records, and any other personally identifiable uses of library resources, information requests, or inquiries.
(b) This section does not apply to either of the following:
(1) Statistical reports of patron use.
(2) Records of fines collected by a library.
(c) All patron use records of a library that is in whole or in part supported by public funds shall remain confidential. A public agency, or a private actor that maintains or stores patron use records on behalf of a public agency, shall not disclose those records to any person, local agency, or state agency, except as follows:
(1) By a person acting within the scope of the person’s duties within the administration of the library.
(2) By a person authorized in writing to inspect the records. The authorization shall be from the individual to whom the records pertain.
(3) By order of the appropriate superior court.
Comments: There are no reported cases discussing this exemption. Litigation Records and Similar Maters (Ch. 8 of Part 5 of Div. 10).
Section 7927.200: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any of the following records:
(a) Records pertaining to pending litigation to which the public agency is a party, until the pending litigation has been finally adjudicated or otherwise settled.
(b) Records pertaining to a claim made pursuant to Division 3.6 (commencing with Section 810), until the pending claim has been finally adjudicated or otherwise settled.
Comment: The purpose of the pending litigation exemption is to prevent a litigant from obtaining a greater advantage against a government entity than otherwise allowed under the rules of discovery. Roberts v. City of Palmdale, 5 Cal. 4th 363, 373, 853 P.2d. 496, 20 Cal. Rptr. 2d 330 (1993). It applies only if the record was specifically prepared for use in litigation — mere relevancy to the litigation is not enough. Cty. of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 64, 149 Cal. Rprt. 3d 324 (2012) (where court held county law firm’s billing invoices were not exempt from disclosure under the pending litigation exemption); Bd. of Trustees of the Cal. State Univ. v. Superior Court, 132 Cal. App. 4th 889, 897, 34 Cal. Rptr. 3d 82 (2005) (quoting Cty. of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830, 98 Cal. Rptr. 2d 564, 572 (2000) (where court remanded action for in camera determination of whether sheriff's department's over-detention reports, logs tracking erroneous releases and over-detentions, and Inmate Reception Center Task Force Report were prepared by county for use in litigation)); see also City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1418-19, 44 Cal. Rptr. 2d 532 (1995) (where court concluded that internal investigation report of officer misconduct could not be withheld under pending litigation exemption because report was not prepared specifically for litigation; rejecting argument that documents relevant to later-instituted litigation should be exempt under pending litigation exemption); Fairley v. Superior Court, 66 Cal. App. 4th 1414, 1422, 78 Cal. Rptr. 2d 648 (1998) (where court remanded action for in camera determination of whether pre-litigation arrest records of plaintiff were prepared in anticipation of litigation).
This exemption protects not only attorney work product or documents protected by the attorney-client privilege, but also the work product of public agencies generated in anticipation of litigation. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 898 (citing Fairley, 66 Cal. App. 4th at 1422 n.5); see also Roberts, 5 Cal. 4th at 373. While, generally, the exemption protects only documents prepared by or on behalf of the agency (see Farley, 66 Cal. App. 4th at 1504), it also protects correspondence between opposing counsel and parties when sought by nonparties to the action and when the parties do not intend the correspondence to be revealed outside of the litigation. Id. at 894.
Once the litigation is over, records not otherwise independently protected from disclosure (i.e., attorney-client documents) must be disclosed. See, e.g., City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 49 Cal. Rptr. 2d 35 (1996) (depositions in concluded action against city not exempt from disclosure); Register Div. of Freedom Newspapers v. Cty. of Orange, 158 Cal. App. 3d 893, 909, 205 Cal. Rptr. 92 (1984) (documents pertaining to settlement of personal injury claim against public entity, including but not limited to settlement agreement itself, were subject to disclosure).
Deposition transcripts are not exempt from disclosure under this subdivision because they are available under another statutory provision absent a protective order. Bd. of Trustees of the Cal. State Univ., 132 Cal. App. 4th at 901(citing Cal. Civ. Proc. Code § 2025.570). A county’s outside counsel’s billing records are not exempt under this subdivision. Los Angeles v. Superior Court, 211 Cal. App. at 57. Claims filed against a public agency under California's Tort Claims Act are not exempt from disclosure under this subdivision. Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1505, 73 Cal. Rptr. 2d. 777 (1998); see also 71 Ops. Cal. Att'y. Gen. 235, 238 (1988).
Section 7927.205: Nothing in this division or any other provision of law requires disclosure of a memorandum submitted to a state body or to the legislative body of a local agency by its legal counsel pursuant to subdivision (e) of Section 11126 or Section 54956.9 until the pending litigation has been finally adjudicated or otherwise settled. The memorandum is protected by the attorney work-product privilege until the pending litigation has been finally adjudicated or otherwise settled.
Comments: While there are no report cases under this exemption, the plain language of the statute indicates that legal memoranda submitted to a state or local body or board for consideration in closed session are not exempt from disclosure under the work product doctrine (and presumably the attorney-client privilege) once litigation is final.
Miscellaneous Public Records (Ch. 9 of Part 5 of Div. 10).
Section 7927.300: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of geological and geophysical data, plant production data, and similar information relating to utility systems development, or market or crop reports, which are obtained in confidence from any person.
Comment: There are no California reported court decisions interpreting this section.
Personal Information and Customer Records (Ch. 10 of Part 5 of Div. 10).
Section 7927.400: Nothing in this division requires the disclosure of records that relate to electronically collected personal information, as defined by Section 11015.5, that is received, collected, or compiled by a state agency.
Comment: The referenced statute pertains to personal information collected by government agencies from users of their websites.
Section 7927.405: Nothing in this division requires the disclosure of the residence or mailing address of any person in any record of the Department of Motor Vehicles except in accordance with Section 1808.21 of the Vehicle Code.
Comment: Section 1808.21 of the Vehicle Code authorizes access to address information by law enforcement, the court, or another government agency.
Nothing in this division requires the disclosure of the name, credit history, utility usage data, home address, or telephone number of a utility customer of a local agency, except that disclosure of the name, utility usage data, and the home address of a utility customer of a local agency shall be made available upon request as follows:
(a) To an agent or authorized family member of the person to whom the information pertains.
(b) To an officer or employee of another governmental agency when necessary for the performance of its official duties.
(c) Upon court order or the request of a law enforcement agency relative to an ongoing investigation.
(d) Upon determination by the local agency that the utility customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies.
(e) Upon determination by the local agency that the utility customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official shall not be disclosed without the official’s consent.
(f) Upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure.
Comment: This provision authorizes access to customer utility usage data where the public’s interest in disclosure clearly outweighs the public’s interest in nondisclosure, a test distinct from that under Section 7922.000, which requires a clear overbalance on the side of non-disclosure for an agency to withhold public records. Customer water usage data has been disclosed under this provision. See, e.g., City of Los Angeles v. Metropolitan Water Dist., 42 Cal. App. 5th 290, 294-95, 299, 255 Cal. Rptr. 3d 202 (2019) (on appeal from fee award following newspaper’s successful CPRA action in intervention to obtain the names and addresses of those receiving water rebates under a turf replacement program, the court noted disclosure conferred “a significant benefit on the general public” and was authorized under Section [7927.410]; see also New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 1585-86, 268 Cal. Rptr. 21 (1990) (holding that water district’s claim that disclosure of names of residential customers who exceeded water usage would expose customers to harassment was insufficient basis to withhold records under public interest balancing test of [Section 7922.000]).
Preliminary Drafts and Similar Materials (Ch. 11 of Part 5 of Div. 10).
Section 7927.500: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by a public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.
Comment: “The purpose of the exemption is to provide a measure of agency privacy for written discourse concerning matters pending administrative action.” Citizens for a Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 711-12, 217 Cal. Rptr. 504 (1985). There are three statutory conditions for exemption under this subdivision: (1) The record sought must be a preliminary draft, note or memorandum; (2) of a type not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding it must clearly outweigh the public interest in disclosure. Id. at 711-12. While the exemption serves to exempt from disclosure “pre-decisional writings containing advisory opinions, recommendations and policy deliberations,” the exemption does not apply to severable factual material contained in deliberative memoranda. Id. at 713.
In Citizens For A Better Environment, the plaintiff, a national environmental organization, sought disclosure of inspection and monitoring reports on county enforcement of pesticide-use laws. Since the documents were made in the course of a determinative process of evaluating the county's compliance with the state's criteria regarding pesticide law enforcement, the documents met the first criteria as “pre-decisional communications.” Id. at 510. While evidence regarding some of the documents sought supported a finding that they were discarded in the ordinary course of business and thus met the second criteria, an EPA memorandum retained in each county file did not. Id. In addressing the third criteria, the court said the phrase “public interest in withholding records” could not be construed to encompass any policy argument as with the catchall exemption under Section 6255, but only those objectives that advance the specific policy domain of subdivision (a) — fostering robust agency debate. Id. at 715-16.
In distinguishing factual as opposed to recommendatory content, the court said, “That a judgment (an opinion) is embedded in a statement that something is the case (the hallmark of a factual claim) obviously does not deprive it of its factual quality. It is only an opinion which is “recommendatory” that may be withheld.” Id. at 717; cf. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342, 813 P.2d 240, 283 Cal. Rptr. 893 (1991) (where under [Section 7922.000's] catchall exemption the court explained that even if the content of a document is purely factual, it would be nonetheless exempt from public scrutiny if it is actually related to the process by which policies are formulated or inextricably intertwined with the policy-making process).
Private Records, Privileged Materials, and Other Records Protected from Disclosure (Ch. 13 of Part 5 of Div. 10).
Section 7927.7000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.
Comment: In enacting the CPRA the Legislature was mindful of the right of individuals to privacy. See Cal. Gov't Code § 7921.000 ("In enacting this division, 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."). Likewise, the constitutional Sunshine Amendment provides, “Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule or other authority to the extent that it protects that right to privacy . . . .” Cal. Const. art. I, § 3(b)(3). Thus, disclosure of public records requires the balancing of two fundamental yet competing public interests: “the public’s interest in disclosure and the individual’s interest in personal privacy.” Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal.4th 319, 329-30, 64 Cal.Rptr.3d 693, 165 P.3d 488 (2007); Comm’n on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 299, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007); see also Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 239, 175 Cal. Rptr. 3d 90 (2014); Versaci v. Superior Court, 127 Cal. App. 4th 805, 813, 26 Cal. Rptr. 3d 92 (2005) (quoting Gilbert v. City of San Jose, 114 Cal. App. 4th 606, 613, 7 Cal. Rptr. 3d 692 (2003)).
The exemption “typically appl[ies] to employee's personnel folders or sensitive personal information which individuals must submit to government.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 777, 192 Cal. Rptr. 415 (1983); cf. Los Angeles County, 228 Cal. App. 4th at 239 (stating exemption for “similar files” need not contain intimate details or highly personal information; rather, records “may simply be government records containing ‘information which applies to a particular individual.’”) (citation omitted). As courts have stated, “one does not lose his [or her] right to privacy upon accepting public employment . . . .” Versaci, 127 Cal. App. 4th at 818 (quoting New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 100, 60 Cal. Rptr. 2d 410 (1997)). For example, in Versaci, the court held that the personal performance goals of a former superintendent of a community college district established each year between the superintendent and the board and maintained as confidential as part of her personnel file were exempt from disclosure under this subdivision. Id. at 818-22.
In determining whether the exemption applies, courts may look to the factors necessary to establish an invasion of a constitutional right of privacy. Int’l Fed’n, 42 Cal.4th at 330 n.3 (while recognizing that review of the factors might be helpful in a particular case, the court explained that intrusion upon a privacy interest need not rise to the level of an invasion of a constitutional right of privacy to be recognized under [7927.700]). That test requires a showing of: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and, (3) a serious invasion of privacy. Hill v. Nat’l Collegiate Athletic Ass'n, 7 Cal.4th 1, 39-40, 26 Cal. Rptr. 2d 834, 865 P.2d 633 (1994) (applying test in invasion of privacy case); Int’l Fed’n, 42 Cal.4th at 330-31 (recognizing privacy interest in personal financial information but holding that expectation of privacy over salary earned in public employment was not reasonable); Braun v. City of Taft, 154 Cal. App. 3d 332, 347, 201 Cal. Rptr. 654 (1984) (applying Hill test in determining whether disclosure required under CPRA); cf. Versaci, 127 Cal. App. 4th at 818 (applying three-part determination that: (1) the document sought constitutes a personnel file, medical file or other similar file; (2) disclosure would compromise substantial privacy interests; and, (3) the potential harm to the privacy interests outweighs the public interest in disclosure).
Personnel Files: Personnel files are not per se exempt from disclosure. However, portions may be exempt if disclosure constitutes an “unwarranted invasion of privacy.” See Braun, 154 Cal. App. 3d at 347. The Braun court recognized that the “personnel” exemption was developed to “protect intimate details of personal and family life, not business judgments and relationships.” Braun, 154 Cal. App. 3d at 343-44; see also Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045, 13 Cal. Rptr. 3d 517 (2004) (same). But see Los Angeles Unified Sch. Dist., 228 Cal. App. 4th at 239 (stating that “similar” files exemption need not contain intimate details or highly personal information; rather, “[t]hey may simply be government records containing ‘information which applies to a particular individual.’”) (citation omitted).
In Braun, the court found that disclosure of two letters from a public employee's personnel file, one appointing him to a position and another rescinding the appointment, did not constitute such an invasion because the letters contained no private information. Id. at 344. The court explained that although the reclassification may be embarrassing to an individual, the letters manifested his employment contract, and in California public employment contracts are public records that may not be considered exempt. Id. Nor was disclosure of the employee's address, birth date and Social Security number prohibited by the right of privacy under article I, section 1 of the California Constitution. Id. at 347.
In CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 907, 110 Cal. Rptr. 2d 889 (2001), the court held that the privacy exemption did not exempt from public disclosure the identity of individuals granted criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals because this information was a matter of public record.
In Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 834, 108 Cal. Rptr. 2d 870 (2001), the court held that individuals who purchased luxury suites in an arena being built on university campus entered into “public sphere” and by doing so “voluntarily diminished their own privacy interest” such that their names and license agreements were not exempt from disclosure under the CPRA.
In Lorig v. Medical Bd., 78 Cal. App. 4th 462, 468, 92 Cal. Rptr. 2d 862 (2000), the court held that it was not an unwarranted invasion of privacy to disclose the home addresses of state-employed physicians who voluntarily used their home address as their “address of record.”
Employee Wrongdoing: While documents relating to employee wrongdoing may be contained in personnel files, they must be disclosed if they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (upholding access to alleged incident of sexual harassment or intimidation by school principal even though district had found allegation not true) (citing Am. Fed’n of State, Cty. and Mun. Emps. v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978)); compare Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violated sexual harassment policy), with Associated Chino Teachers v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 543, 241 Cal. Rptr. 3d 732 (2018) (holding complaints against high school volleyball coach involving yelling, belittling student-athletes, and scheduling practices at their homes were not substantial in nature sufficient to outweigh public employee’s privacy interest in personnel file). Under such circumstances, the public employee privacy must give way to the public interest in disclosure of public employee wrongdoing. Bakersfield, 118 Cal. App. 4th at 1046. In determining whether the complaint is well founded, the trial court does not determine the veracity of the underlying complaint but reviews the documents to determine whether “they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded.” Id. at 1047.
Separately, where a “complaint has been upheld by the agency involved or discipline imposed, even if only a private reproval, it must be disclosed.” Marken, 202 Cal. App. 4th at 1275 (holding that where school district had concluded teacher violated sexual harassment policy and where written reprimand was imposed, release of investigatory report and disciplinary record was required under the CPRA) (citing Am. Fed’n, 80 Cal. App. 3d at 919).
Where the allegations of wrongdoing are against a public figure or public official, such as a school district superintendent, as opposed to a nonpublic figure or nonpublic official, a lesser standard of reliability is applied in reviewing the records. See BRV, Inc. v. Superior Court, 143 Cal.App.4th 742, 759, 49 Cal.Rptr.3d 519 (2006). This is so because public officials have significantly reduced expectations of privacy in their public employment. Id. at 758 (“The potential injury here is to his reputation, but as a public official, he knew his performance could be the subject of public, ‘vehement, caustic, and sometimes unpleasantly sharp attacks . . . .’”) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Thus, the court in BRV reviewed a report against a school superintendent accused of verbally abusing students and sexually harassing female students and said “it could not conclude the allegations were so unreliable the accusations could not be anything but false.” Id. at 758-59.
Applying this lesser standard, the court in Caldecott v. Superior Court, 243 Cal. App. 4th 212, 224-25, 196 Cal. Rptr. 3d 223 (2015), held that terminated school district employee was entitled under the CPRA to documents responsive to his hostile work employment complaint against superintendent, which included allegations of financial irregularities. In so holding, the court said it could not conclude that the allegations against the superintendent and school “could not be anything but false” even though the district had found that the allegations were not well founded. Id. at 225.
Salary Information: The public has a right of access to public employee exact salary information under the CPRA. See Int’l Fed’n, 42 Cal.4th at 329. Without deciding whether a public entity’s payroll expenditure information constitutes “personnel . . . or similar files” under [Section 7927.700], the court in International Federation held that disclosure of exact salary information was nonetheless compelled because disclosure would not constitute an “‘unwarranted invasion of personal privacy.’” Id. at 329 (quoting Cal. Gov’t § [7927.700]). In so holding, the court explained that while disclosure may cause “discomfort or embarrassment . . .[,] an individual’s expectation of privacy in a salary earned in public employment is significantly less than the privacy expectation regarding income earned in the private sector.” Id. at 331. The court also noted that “[c]ounterbalancing any cognizable interest that public employees may have in avoiding disclosure of their salaries is the strong public interest in knowing how the government spends its money.” Id. at 333. Access to public records, the court said, “makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.’” Id. at 333 (quoting NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 1211 n.28, 86 Cal.Rptr.2d 778, 980 P.2d 337 (1999)).
The court also discounted an earlier case decided at the preliminary injunction stage that had supported the notion that public employees may have, under certain circumstances, a reasonable expectation of privacy in their exact salaries. Id. at 335 (concluding that Priceless, 112 Cal. App. 4th 1500, was of slight precedential value because of the limited trial court record and posture of the case). It also expressly disagreed with Priceless to the extent its holding can be read to stand for the proposition that the practice of a particular governmental agency in refusing to disclose salary information can create a privacy interest in those records. Id. at 336.
Cases decided before International Federation also supported the notion that exact salary information of public employees is not exempt under the CPRA. See Braun, 154 Cal. App. 3d at 338-40 (holding that trial court was within its discretion to find that disclosure of salary card of transit administrator was not an unwarranted invasion of personal privacy); 60 Ops. Cal. Att'y. Gen. 110 (1977); 68 Ops. Cal. Att'y. Gen. 73 (1985); see also Cal. Gov't Code § 54957 (prohibiting local public agencies from conducting closed session meetings to discuss or act on proposed compensation “except for a reduction of compensation that results from the imposition of discipline"); San Diego Union v. City Council, 146 Cal. App. 3d 947, 955, 196 Cal. Rptr. 45 (1983) (upholding trial court order enjoining city council from holding closed sessions on salaries of nonelected city employees).
Public Contracts: Every public employment contract between a state or a local agency and any public official or public employee is a public record. Cal. Gov't Code § 7928.400; cf. Priceless, 112 Cal. App. 4th at 1517-18 (holding this provision did not apply to compel individualized salary information of most classified civil service employees because their employment is pursuant to statute not contract).
Pension Benefits: Disclosure of individual public employee pension amounts has been held not to constitute a violation of the constitutional right to privacy of public employees. See Sacramento Cty. Emps.’ Retirement System v. Superior Court, 195 Cal. App. 4th 440, 468; 125 Cal. Rptr. 3d 655 (2011) (concluding that public pensions are not private information and that county retirement system failed to demonstrate under Section 6255(a) of the Government Code a public interest in nondisclosure that clearly outweighed the public interest in disclosure); see also Sonoma Cty. Emps.’ Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011) (privacy interests of county retires did not outweigh the public’s interest in access to names and gross benefit amount of retirees); San Diego Cty. Emp. Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 3d 479 (2011) (concluding that “public employees lack a reasonable expectation of privacy in an expense [pension amounts] the public largely bears after their retirement”).
Police Records: The constitutional Sunshine Amendment expressly maintains statutory privacy protections for peace officers. Cal. Const. art. I, § 3(b)(3). Disclosure of police officer personnel records are regulated by both California's Evidence Code and Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8 and Cal. Evid. Code §§ 1043-1046. “Personnel records” include “any file maintained under that individual’s name by his or her employing agency and containing records relating to” among other things “[e]mployee advancement, appraisal, or discipline,” and “[c]omplaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.” Cal. Penal Code § 832.8(a)(4)-(5). These provisions did not preclude disclosure of complaints, an independent investigation report and related documents pertaining to an elected county sheriff where the county/custodian of records was not the sheriff’s employing agency, and the purpose of independent investigation was distinct from an internal disciplinary investigation. Essick v. County of Sonoma, 81 Cal. App. 5th 562, 951, 296 Cal. Rptr. 3d 117 (2022); compare, Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272, 1294, 48 Cal.Rptr.3d 183, 141 P.3d 288 (2006) (where court held shifting of internal affairs function to county civil service commission did not strip the records of the protections they would have had if generated internally by officer’s employing agency).
The protections apply to disciplinary appeals. See Copley Press, Inc., 39 Cal. 4th 1294 (upholding protections in context of peace officer’s administrative appeal before county civil service commission of a disciplinary determination); San Diego Police Officers Ass'n v. City of San Diego Civil Service Comm’n, 104 Cal. App. 4th 275, 287, 128 Cal. Rptr. 2d 248 (2002) (provisions governing peace officer personnel records precluded disclosure of peace officer personnel records at public administrative appeal of disciplinary decision if disclosure objected to by officer).
The protections have been held to extend to allegations of police misconduct [City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1431, 44 Cal. Rptr. 2d 532 (1995)] and an officer’s urinalysis test results taken in connection with an administrative investigation of an officer’s off-duty conduct [Fagan v. Superior Court, 111 Cal. App. 4th 607, 618-19, 4 Cal. Rptr. 3d 239 (2003)].
Several courts, however, have addressed the limitations of the protections for peace officer personnel files. In Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278, 64 Cal.Rptr.3d 661, 165 P.3d 462 (2007), for example, the California Supreme Court made clear that these statutes cannot be interpreted as reaching beyond their clear language and purpose, and cannot be used as a justification for withholding basic information about the state’s law enforcement officers:
“The public’s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant. ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’”
42 Cal. 4th at 297 (emphasis added) (quoting New York Times v. Superior Court, 52 Cal. App. 4th 97, 104-105, 60 Cal. Rptr. 2d 410 (1997)). Thus, the court held that police officer names, employing agency, and employment dates in a database maintained by the commission were not confidential under Sections 832.7 or 832.8, and disclosure would not constitute an unwarranted invasion of personal privacy under Government Code [Section 7927.700]. Id. at 294, 299-303. And in International Federation, 42 Cal.4th at 343-46, the court rejected the argument that individual salary information of police officers was confidential as part of their “personnel records” under Section 832.7.
Names of police officers involved in shooting incidents while engaged in the performance of their duties also have been held not to be private information under these Penal Code provisions. See Long Beach Police Officers Ass’n v. City of Long Beach (“LBPOA”), 59 Cal. 4th 59, 71, 73, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014) (limiting exemption for peace officer personnel records to records “generated in connection with [an officer’s] appraisal or discipline,” and holding that “public’s substantial interest in the conduct of its peace officers outweighs, in most cases, the officer’s personal privacy interest”); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr. 2d 410 (1997) ("Fear of possible opprobrium or embarrassment is insufficient to prevent disclosure [of peace officers involved in on-duty shootings]."). The California Attorney General also had concluded that these Penal Code provisions did not shield the names of peace officers involved in critical incidents, and that the information must be disclosed in response to a CPRA request unless the proponents of secrecy show that the harm of disclosure clearly outweighs the benefits of public access in a specific case — generally, in those situations where peace officers are currently working undercover. 91 Ops. Cal. Atty. Gen.11 (May 19, 2008).
Similarly, the court in City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 763-64, 205 Cal. Rptr. 3d 134 (2016), held that video of juvenile’s arrest from dashboard camera was not a confidential police personnel record because it was not “generated in connection” with the officer’s appraisal or discipline. Instead, the court said, it was just a “visual record of the minor’s arrest” akin to “information contained in the initial incident report” of an arrest, which is not exempt as a peace officer personnel record. Id. at 764.
Additionally, a report compiled by an independent consultant hired to review an officer-involved shooting of an unarmed teenager not for disciplinary purposes but to advance department-wide administrative reforms was held not to be exempt as a peace officer personnel record. See Pasadena Police Officers Ass’n v. Superior Court, 240 Cal. App. 4th 268, 289, 192 Cal. Rprt. 3d 486 (2015). The court, nevertheless, held that portions of the report culled from personnel information or officer statements in the course of the administrative investigation contained within the report were exempt. Id. at 290-91 (discussing segregation requirements where exempt information is not inextricably intertwined with non-exemption information). This aspect of the decision, however, would not withstand scrutiny under newly adopted SB 1421.
Disclosure of information in violation of the statutory procedures governing disclosure of peace officer personnel records has been determined not to give rise to a private right of action. Rosales v. City of Los Angeles, 82 Cal. App. 4th 419, 428, 98 Cal. Rptr. 2d 144 (2000).
In 2018 and 2021, the California Legislature enacted Senate Bill 1421 and Senate Bill 16, respectively, which amended Penal Code Section 832.7 to expressly expand the public’s right of access to certain peace officer records maintained by state or local agencies. In passing SB 1421, the Legislature expressly stated:
“The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
SB 1421, § 1(b). In its current form, the law mandates public access to the following eight categories of information: (1) incidents involving the discharge of a firearm at a person by a peace officer; (2) incidents involving the use of force by a peace officer against a person resulting in death or great bodily injury; (3) incidents involving a sustained finding of a complaint alleging unreasonable or excessive force; (4) incidents involving a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive; (5) incidents in which a sustained finding was made by a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in the sexual assault involving a member of the public; (6) incidents in which a sustained finding was made by a law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly related to the reporting, investigation, or prosecution of a crime, or directly related to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained findings of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence; (7) incidents involving sustained findings that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and (8) incidents involving a sustained finding that a peace officer made an unlawful arrest or conducted an unlawful search. Cal. Penal. Code § 832.7(b)(1).
Senate Bill 1421 has been held to apply retroactively to subject incidents occurring before the legislation went into effect on January 1, 2019. See Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, 33 Cal. App. 5th 940, 941, 245 Cal. Rptr. 3d 398 (March 12, 2019). In rejecting a police association’s argument that the law applied only to incidents after January of 2019, the court explained that the law did not change the legal consequences for peace officer conduct occurring before 2019—a general requirement for retroactive application of new law—rather, it changed only the public’s right of access to peace officer records. Id. at 942. See also Ventura County Deputy Sheriffs’ Ass’n v. County of Ventura, 61 Cal. App. 5th 585, 594, 275 Cal. Rptr. 3d 843 (2021)(same).
A ”sustained” finding means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal… that the actions of the peace officer or custodial officer were found to violate law or department policy.” Cal. Pen. Code § 832.7(b). As long as there was an opportunity for an appeal, even if an appeal hearing isn’t completed, an internal investigation can be final and its findings remain sustained. Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039, 1053, 275 Cal. Rptr.3d 895 (2021). And the disclosure obligations apply even where an officer resigns before an investigation has concluded. Cal. Gov’t Code § 832.7(b)(3).
These disclosure obligations apply to records held but not created by a custodian agency, such as the Department of Justice, even where the custodian is not the officer’s employing agency. Becerra v. Superior Court, 44 Cal. App. 5th 897, 918-19, 257 Cal. Rptr. 3d 897 (2020)(holding that section 832.7’s plain language makes clear that officer-related records in the Department of Justice’s possession are subject to disclosure regardless of whether such records concern peace officers employed by the department or by another state or local agency.)
Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8) of Section 832.7(b), records subject to disclosure under Section 832.7(b) “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Cal. Pen. Code § 832.7(b)(11). Job Applications: With respect to job applications and resumes of public employees, the court in Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794, 184 Cal. Rptr. 840 (1982), said that “information as to the education, training, experience, awards, previous positions and publications of the [employee] . . . is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Additionally, job applications and resumes of those actually chosen for the job are not exempt from disclosure. But applications and resumes pertaining to others in the pool of applicants may be exempt from disclosure under the deliberative process privilege, discussed elsewhere in this guide.
Medical Records: Generally, medical records are the type of records that are exempt from disclosure under 7927.700. However, medical records of a tort claimant against a county are not exempt from disclosure since by making the claim, the claimant places his or her alleged physical injuries and medical records substantiating them in issue and tacitly waives any expectation of privacy with respect to them. Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984). Because the county used the records in arriving at its decision to settle the claim, the court in Register Division of Freedom Newspapers said the county could not hide behind the claimant's privacy to justify its concealment of the records from public scrutiny. Id.
“No provider of health care, health care service plan or contractor” may disclose medical information without patient or guardian authorization. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual).
Financial Data: Financial data submitted by a waste disposal firm to a city, which the city relied on in granting a rate increase pursuant to an exclusive contract between the city and the company, was not exempt from disclosure under [Section 7927.700] where the city publicly based its decision to permit the company to increase rates based upon the financial data it submitted. The data thereby lost its exempt status. San Gabriel Tribune, 143 Cal. App. 3d at 775; see also Cal. State Univ., 90 Cal. App. 4th at 834 (rejecting argument that disclosure of names of those who purchased luxury suites at arena being built on university property would violate individuals' right to privacy in their financial dealings).
Section 7927.705: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records, 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.
Comment: This section is not an independent exemption but merely incorporates other prohibitions established by law. Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1283, 48 Cal. Rptr. 3d 183, 141 P.3d 288 (2006); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 906, 110 Cal. Rptr. 2d 889 (2001) (quoting CBS Inc. v. Block, 42 Cal.3d 646, 656, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Statutes regulating various agencies, commissions and public offices often designate specific records as confidential. Additionally, Sections 930 through 1061 of the Evidence Code set forth the various privileges from compelled disclosure available to litigants in civil and criminal trials. These statutes and privileges may be asserted, where applicable, by a public agency under this section.
For example, pursuant to Evidence Code Sections 950 through 962, a public agency has an attorney-client privilege in confidential communications between itself and its attorneys. The California Supreme Court held that this exemption covers communications that are made between a public agency and its attorneys during pending litigation as well as those made at other times. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371, 20 Cal. Rptr. 2d 330, 853 P.2d 496 (1993).
In Los Angeles County Board of Supervisors v. Superior Court, 2 Cal. 5th 282, 288, 212 Cal. Rptr. 107, 386 P.3d 773 (2016), the California Supreme Court held that the attorney-client privilege does not categorically shield everything in a county attorneys’ billing invoice but that invoices for work in pending and active legal matters are covered by the privilege. The court remained for further determination of whether billing totals in completed cases were communicated for purpose of legal consultation (and thus were privilege). Id. at 300. See Cty. of Los Angeles Bd. of Supervisors v. Superior Court, 12 Cal. App. 5th 1264, 1276-77, 219 Cal. Rptr. 3d 674 (2017) (on remand from Cal. Supreme Court, appellate court refused to conduct in camera review of redacted portions of billing statements citing attorney-client privilege, and remanded to trial court issue of whether fee totals in concluded cases should be disclosed under CPRA).
One court also has held that the privilege is not waived by disclosure to a successful bidder of a privileged memorandum and transmittal letter prepared by county counsel where disclosure was reasonably necessary to further the interests of both parties in finalizing negotiations. STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 341, 109 Cal. Rptr. 2d 865 (2001).
In a case decided under Section 7927.705’s predecessor, the California Supreme Court held that more specific provisions of California’s Long-Term Care, Health, Safety, and Security Act, providing that citations issued against health care facilities are public records, prevailed over confidentiality provisions contained in another statutory scheme protecting mentally ill and developmentally disabled individuals. State Dep’t of Pub. Health v. Superior Court, 60 Cal. 4th 940, 964, 184 Cal. Rptr. 3d 60, 342 P.3d 1217 (2015).
The qualified trade secret and official information privileges and the attorney work-product doctrine, which covers the research, impressions, notes and conclusions of an attorney, may be asserted through Section 7927.705.
In an effort to identify the numerous statutes that are incorporated in this section, the Legislature enacted Section 7930.000, which provides that after January 1, 1999, each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to Section 7927.705 shall be listed and described in Chapter 2 (commencing with Section 7930.100). Public Employee or Official (Ch. 14 of Part 5 of Div. 10).
(a) Except as provided in Section 7925.510, 7924.700, and 7929.610, this division does not require the disclosure of correspondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s Legal Affairs Secretary.
(b) Public records shall not be transferred to the custody of the Governor’s Legal Affairs Secretary to evade the disclosure provisions of this division.
Comment: In Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1337, 813 P.2d 240, 283 Cal. Rptr. 893 (1991), the California Supreme Court held that the Governor's daily, weekly and monthly calendars and schedules were not exempt under this subsection, which the court said was confined to “communications by letter.” However, the court in Times Mirror found such documents to be exempt under the “deliberative process” exemption under Government Code Section 6254(a). Id. at 1344.
Expanding the exemption beyond strictly “communications by letters,” the appellate court in Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 169 (1998), held that application forms as well as letters received by the Governor's office from applicants for appointment to a vacant supervisor position fell within the correspondence exemption. In so holding, the court noted that the exemption is designed to protect from disclosure communications to the Governor and members of the Governor's staff from correspondents outside of government. Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 168, 78 Cal. Rptr. 2d 847 (1998). Another appellate court, however, has declared this statement dicta, in holding that the Governor’s correspondence exemption is not limited to correspondence sent to the Governor’s office by correspondents outside of the government. Rittiman v. Public Utilities Com., 80 Cal. App. 5th 1018, 1040, 295 Cal. Rptr. 3d 285 (2022) (involving CPRA request for all communications between California Public Utilities Commission President and members of the Governor’s staff). The court in Rittiman expressly declined to address what it called the “critical issue” of whether a written communication to or from the Governor or his or her staff is “correspondence” or some other form of communication. Id. at 1044.
(a) Except as provided in subdivision (b) and in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any record that are in the custody of, or maintained by, the Legislative Counsel.
(b) Subdivision (a) does not apply to records in the public database maintained by the Legislative Counsel that are described in [Government Code] Section 10248.
Comment: There are no reported cases discussing this exemption. Records of the Legislature are subject to the Legislative Open Record Act. See Gov’t Code §§ 9070-9080.
(a) The home addresses, home telephone numbers, personal cellular telephone numbers, and birthdates of all employees of a public agency shall not be deemed to be public records and shall not be open to public inspection, except that disclosure of that information may be made as follows:
(1) To an agent, or a family member of the individual to whom the information pertains.
(2) To an officer or employee of another public agency when necessary for the performance of its official duties.
(3) To an employee organization pursuant to regulations and decisions of the Public Employment Relations Board, except that the home addresses and any phone numbers on file with the employer of employees performing law enforcement-related functions, and the birthdate of any employee, shall not be disclosed.
(4) To an agent or employee of a health benefit plan providing health services or administering claims for health services to public agencies and their enrolled dependents, for the purpose of providing the health services or administering claims for employees and their enrolled dependents.
(b) (1) Unless used by the employee to conduct public business, or necessary to identify a person in an otherwise disclosable communication, the personal email addresses of all employees of a public agency shall not be deemed to be public records and shall not be open to public inspection, except that disclosure of that information may be made as specified in paragraphs (1) to (4), inclusive, of subdivision (a).
(2) This subdivision shall not be construed to limit the public’s right to access the content of an employee’s personal email that is used to conduct public business, as decided by the Supreme Court in City of San Jose v. Superior Court (2017) 2 Cal.5th 608.
(c) Upon written request of any employee, a public agency shall not disclose the employee’s home address, home telephone number, personal cellular telephone number, personal email address, or birthdate pursuant to paragraph (3) of subdivision (a) and an agency shall remove the employee’s home address, home telephone number, and personal cellular telephone number from any mailing list maintained by the agency, except if the list is used exclusively by the agency to contact the employee.
Comment: Where disclosure is necessary to identify a public employee or the public employee is carrying out the public’s business using personal devises, such as a cell phone or private email account, this exemption is not applicable.
Section 7928.400: Every employment contract between a state or local agency and any public official or public employee is a public record that is not subject to Section 7922.000 and the provisions listed in Section 7920.505.
Comment: This provision is not an exemption. Citation to this section is helpful when a public agency denies access to agency employment contracts.
(a) Except as provided in Section 7924.510, 7924.700 and 7929.610, this division does not require the disclosure of records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, and Article 19.5 (commencing with Section 8430) of Chapter 2 of Part 6 of Division 1 of Title 1 of the Education Code, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under that chapter.
(b) This section shall not be construed to limit the disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this section.
(b) This section shall not be construed to limit the disclosure duties of a local agency with respect to any other records relating to the activities governed by the employee relations act referred to in this section.
Comment: The referenced statutes are provisions of the Government Code relating to state and local agency employer-employee relations. The representatives of a state or local agency need not disclose to the public records concerning their tactics, analysis or strategy in employee relations. In Freedom Foundation v. Superior Court, 87 Cal. App. 5th 47, 302 Cal. Rptr. 3d 655, 661 (2022), the court rejected an argument that the categories of records listed under this exemption were all required to be deliberative in nature to be exempt.
Public Entity Spending, Finances, and Oversight (Ch. 15 of Part 5 of Div. 10).
Section 7928.700: Notwithstanding any contract term to the contrary, a contract entered into by a state or local agency subject to this division, including the University of California, that requires a private entity to review, audit, or report on any aspect of that agency shall be public to the extent the contract is otherwise subject to disclosure under this division.
Comment: This section is not an exemption; rather, it is an expression of an affirmative disclosure obligation unless the contract is otherwise exempt under an express provision of the CPRA.
(a) Except as provided in subdivision (b) and in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by a state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained.
(b) This section does not affect the law of eminent domain.
Comment: There are no reported cases discussing this exemption.
Regulation of Financial Institutions and Securities (Ch. 16 of Part 5 of Div. 10).
Section 7929.000: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records contained in, or related to, any of the following:
(a) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions and insurance companies.
(b) Examination, operating, or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in subdivision (a)).
(c) Preliminary drafts, notes or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in subdivision (a).
(d) Information received in confidence by any state agency referred to in subdivision (a).
Comment: There are no California reported court decisions interpreting this section. . Cases decided under the companion section of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(8), generally apply this exemption liberally in favor of nondisclosure. One federal appeals court has even held that financial reports concerning a closed bank require the same protection from disclosure as those of an operating bank. Gregory v. Fed. Deposit Ins. Corp., 631 F.2d 896, 203 U.S. App. D.C. 314 (D.C. Cir. 1980).
Security Measures and Related Matters (Ch. 17 of Part 5 of Div. 10).
Section 7929.200: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of a document prepared by or for a state or local agency that satisfies both of the following conditions:
(a) It assesses the agency’s vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operation.
(b) It is for distribution or consideration in a closed session.
Comment: This exemption was adopted in response to concerns after the terrorist attacks on Sept. 11, 2001. There are no reported cases discussing this exemption.
(a) As used in this section, “voluntarily submitted” means submitted without the Office of Emergency Services exercising any legal authority to compel access to, or submission of, critical infrastructure information.
(b) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the Office of Emergency Services for use by that office, including the identity of the person who, or entity that, voluntarily submitted the information.
(c) This section does not affect the status of information in the possession of any other state or local governmental agency.
Comment: This exemption has generated no reported decisions. But see Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009) (holding that federal Critical Infrastructure Information Act did not prohibit county from disclosing GIS basemap data under the CPRA where data had been submitted by the county to federal government, not to the county).
(a) Nothing in this division requires the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities to, or otherwise increase the potential for an attack on, an information technology system of a public agency.
(b) Nothing in this section limits public disclosure of records stored within an information technology system of a public agency that are not otherwise exempt from disclosure pursuant to this division or any other law.
Comment: There are no reported cases discussing this exemption.
State Compensation Insurance Fund (Ch. 18 of Part 5 of Div. 10).
Section 7929.400: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund that relate to claims pursuant to Chapter 1 (commencing with Section 3200) of Part 1 of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed.
Section 7929.405: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund that relate to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategies of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code.
Section 7929.415: Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund obtained to provide worker’s compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, all of the following:
(a) Any medical claims information.
(b) Policyholder information provided that this section shall not be interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent or broker.
(c) Information on rates, pricing, and claims handling received from brokers.
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of the State Compensation Insurance Fund that are trade secrets pursuant to Section 7930.205, or Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including, without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund’s special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections.
(b) Notwithstanding subdivision (a), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.
(a) Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records of internal audits of the State Compensation Insurance Fund containing proprietary information, or the following records of the State Compensation Insurance Fund that are related to an internal audit:
(1) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that the person’s papers and correspondence be kept private and confidential. Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund.
(2) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information.
(b) Notwithstanding subdivision (a), the portions of records containing proprietary information, or any information specified in subdivision (a) shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.
(a) For purposes of this paragraph, “fully executed” means the point in time when all of the necessary parties to the contract have signed the contract.
(b) Except as provided in subdivision (d), records of the State Compensation Insurance Fund that are contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed.
(c) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed.
(d) Three years after a contract or amendment is open to inspection pursuant to this section, the portion of the contract or amendment containing the rates of payment shall be open to inspection.
(e) Notwithstanding any other law, the entire contract or amendment to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendment thereto until the contract or amendment is open to inspection pursuant to this section.
(f) This section does not apply to a document related to a contract with a public entity that is not otherwise expressly confidential as to that public entity.
Comment: The above sections under Chapter 18 pertaining to the State Compensation Insurance Fund were all formerly under Section 6254(ad) of the Government Code. There are no reported cases discussing the exemptions under this chapter.
Test Materials, Testing Results, and Related Matters (Ch. 19 of Part 5 of Div. 10).
Section 7929.605: Except as provided in Sections 7924.510, 7924.700, and 7929.610, and in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of Education Code, this division does not require disclosure of test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination.
Comment: The Education Code sections referred to in this section address standardized tests for admission to post-secondary institutions, such as the Scholastic Aptitude Test (SAT) and similar examinations. Copies of tests, answers, scores and related documents and information that are required to be filed with the California Post-Secondary Education Commission are exempt from disclosure under this section.
Catchall/Public Interest Exemption: Under Section 7922.000 an agency may withhold public records if "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." Cal. Gov't Code § 7922.000.
“This ‘provision contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.’” ACLU v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rprt. 3d 832, 400 P.3d 432 (2017) (quoting Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071, 44 Cal. Rprt. 3d 663, 136 P.3d 194 (2006)). See also CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 908, 110 Rptr. 2d 889 (2001) ("The burden of proof is on the proponent of nondisclosure, who must demonstrate a 'clear overbalance' on the side of confidentiality.") (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018, 88 Cal. Rptr. 2d 552 (1999)).
While this section does not specifically identify the public interests to be served in non-disclosure, the nature of those interests may be inferred from the specific exemptions set forth under the CPRA. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 283 Cal. Rptr. 893, 813 P.2d 240 (1991). As explained by the California Supreme Court, whether a clear overbalance exists in a particular case can depend on a variety of factors, including privacy and the burden and expense of segregating exempt from non-exempt information. ACLU, 3 Cal. 5th at 1043 (citing ACLU v. Deukmejian, 32 Cal. 3d 440, 452-53,185 Cal. Rprt. 235, 651 P.2d 822 (1982)). However, “[v]ague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure of officer names.” Long Beach Police Officers Ass’n v. City of Long Beach, 59 Cal. 4th 59, 74, 172 Cal. Rptr. 3d 56, 325 P.3d 460 (2014). “A mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to . . . records.’” Id. (quoting CBS, Inc. v. Block, 42 Cal. 3d 646, 652, 230 Cal. Rptr. 362, 725 P.2d 470 (1986)). Rather, there must be a “particularized showing necessary to outweigh the public’s interest in disclosure . . . .” Id. at 75.
In identifying the public interest in disclosure courts have looked at whether disclosure “‘would contribute significantly to public understanding of government activities’ and serve the legislative purpose of ‘shed[ding] light on an agency’s performance of its statutory duties.’” Los Angeles Unified Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 241, 175 Cal. Rptr. 3d 90 (2014) (quoting City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018-19, 88 Cal. Rprt. 2d 552 (1999)). “[A]s a threshold matter, the records sought must pertain to the conduct of the people’s business.” Id. at 242. The weight to be assigned that interest “‘is proportionate to the gravity of the governmental task sought to be illuminated and the directness with which the disclosure will serve to illuminate.’” Id. at 242 (quoting Connell v. Superior Court, 56 Cal. App. 4th 601, 616, 65 Cal. Rptr. 738 (1997)). “Even where a public interest exists, if it is minimal or hypothetical, disclosure will not be compelled.” Id. at 248. Moreover, where alternative, less intrusive means of obtaining the information sought exist, the public interest may be considered “minimal.” Id.
Importantly, while the constitutional Sunshine Amendment expressly maintains preexisting statutory exemptions such as this, the elevation of the public's right of access to constitutional stature under the Amendment must now be considered when balancing the respective interests. Cal. Const. art. I, § 3(b)(1).
This public interest exemption, or "catchall" exemption, has been used to withhold public records not otherwise exempt under the CPRA or as an additional ground for nondisclosure. See, e.g., ACLU, 3 Cal. 5th at 1044 (upholding trial courts determination that public’s interest in non-disclosure of unredacted/raw license plate reader data would clearly outweigh public interest in disclosure but remanding for consideration of “new balancing analysis—one that includes consideration of the feasibility of, and interests implicated by, methods of anonymization . . . .”); Comm’n on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 301, 64 Cal. Rptr. 3d 661, 165 P.3d 462 (2007) (stating in dicta that if the duties of peace officers, such as one operating under cover, demand anonymity, “the need to protect the officer’s safety and effectiveness” would justify the withholding of identifying information under Section 6255(a));Times Mirror Co., 53 Cal. 3d at 1340-47 (where the court recognized the potential threat to the governor's security caused by disclosure of the governor's daily and weekly schedules, bolstering the court's determination that the need for confidentiality outweighed the need for disclosure); Voice of San Diego v. Superior Court, 66 Cal. App. 5th 669, 691-92, 694, 280 Cal. Rptr. 3d 906 (2021) (where county’s evidence showed that disclosure of location and location address column on spreadsheet of confirmed Covid outbreaks would undermine efforts to fight pandemic by discouraging public candor necessary to facilitate contact tracing, court held county met its burden to establish public interest in non-disclosure clearly outweighed public interest in disclosure); (Los Angeles Unified Sch. Dist., 228 Cal. App. 4th at 253 (concluding disclosure of names linked to teacher evaluation test scores did not outweigh the public interest in protecting the privacy interests of teachers); City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1023, 88 Cal. Rptr. 2d 552 (1999) (where the court held the interest in withholding names, addresses and telephone numbers of persons who complained to city about municipal airport noise outweighed the public interest served by disclosure).
Where, however, the government agency is unable to meet its burden under this exemption, it cannot justify withholding public records under it. See, e.g., Long Beach Police Officers Ass’n, 59 Cal. 4th at 74-75 (vaguely worded declarations making only generalized assertions about risks officers face after shooting incidents did not outweigh public interest in overseeing the conduct of its peace officers); Block, 42 Cal. 3d at 652-25 (nondisclosure of records of applications and licenses for concealed weapons did not outweigh public interest in accountability and ensuring fair application of law); Edais v. Superior Court, 87 Cal. App. 5th 530, 303 Cal. Rptr. 3d 722, 735 (2023)(holding concern that disclosure of coroner’s report of police officer’s death sought by officer’s family would chill cooperation from members of the public in future coroner’s investigations did not clearly outweigh public’s interest in disclosure under Section 7927.700); IIoh v. Regents of Univ. of Cal., 87 Cal. App. 5th 513, 303 Cal. Rptr. 3d 709, 720 (2023) (holding in reverse CPRA action that professor did not meet his burden of proof to show that public interest in non-disclosure of post-publication communications among professors, university and academic journal regarding retracted articles authored by professor clearly outweighed public interest in disclosure of communications allegedly concerning plagiarism or violation of university policy); Becerra v. Superior Court, 44 Cal. App. 5th 897, 924, 930, 257 Cal. Rptr. 3d 897 (2020) (holding that catch-all exemption may apply to officer-related records required to be disclosed under Penal Code Section 832.7 and rejecting Dept. of Justice’s argument that burden of reviewing, redacting and disclosing “potentially millions of records” constituted a clear overbalance in favor of non-disclosure); Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321, 1329, 89 Cal. Rptr. 3d 374 (2009) (holding that county failed to demonstrate a clear overbalance on the side of confidentiality in withholding GIS basemap data from the public); CBS Broad. Inc., 91 Cal. App. 4th at 908 (holding agency failed to meet burden of proof to withhold names of every individual granted a criminal conviction exemption to work in a licensed child day care facility and the identity of each facility employing such individuals); Cal. State Univ. v. Superior Court (Fresno), 90 Cal. App. 4th 810, 835, 108 Cal. Rptr. 2d 870 (2001) (holding university failed to carry its burden of proof to justify withholding identity of every individual who obtained luxury suite licenses in arena being built on university property); Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1506, 73 Cal. Rptr.2d 777 (1998) (where court held privacy of minors submitting claim forms to public schools, which the court said were relevant to the public interest in ending school hazing practices, did not justify withholding records of claims under this exemption); New York Times Co. v. Superior Court, 52 Cal. App. 4th 97, 104, 60 Cal. Rptr.2d 410 (1997) (where the court held that the perceived harm to deputies from disclosure of their names as officers who fired weapons in the line of duty, which resulted in the death of a civilian, did not outweigh the public interest served by disclosure of their names); Connell v. Superior Court, 56 Cal. App. 4th 601, 612, 65 Cal. Rptr. 2d 738 (1997) (where the court held pure speculative security interests or burden and expense of providing requested information did not justify withholding unpaid warrants to state vendors, which pertained to the government's conduct in managing public revenues); City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083, 1091, 49 Cal. Rptr. 2d 35 (1996) (where the court held the public interest in disclosure of deposition transcripts in a closed action against the city, which related to claims of excessive force in the use of police dogs, outweighed the privacy interest of the litigants and could not be overcome by a purported chilling effect disclosure would have on the way the city prepares its cases); New York Times Co. v. Superior Court, 218 Cal. App. 3d 1579, 268 Cal. Rptr. 21 (1990) (public disclosure of names of excessive users of water outweighed reputational/privacy interests of those issued citations); Register Div. of Freedom Newspapers, Inc. v. County of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984) (where public interest in disclosure of medical records used by county in settling claim outweighed any purported privacy right in nondisclosure).
Deliberative Process Privilege Under Catchall Exemption: Disconcerting for proponents of open government, the catchall exemption has been used to engraft an expansive "deliberative process privilege" into the CPRA that would not otherwise be available under Section 7927.500's deliberative process exemption for preliminary drafts, notes or interagency or intra-agency memoranda, or any other specific exemption. See, e.g., Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991).
The deliberative process privilege is designed to protect essentially three policy objectives:
"First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that 'officials should be judged by what they decided, not for matters they considered before making up their minds.'"
Times Mirror Co., 53 Cal. 3d at 1352 (Kennard, J., dissenting) (citing Jordan v. United States Dep’t. of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)); see also Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 170, 78 Cal. Rptr. 2d 847 (1998).
The key question in every case is "whether the disclosure of materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Times Mirror Co., 53 Cal. 3d at 1342. To qualify for the privilege, the document sought must be both predecisional and deliberative. Id. at 1352 (Kennard, J., dissenting) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S. Ct. 1504, 44 .L.Ed.2d 29 (1975)). "To establish that a document is predecisional, an agency must identify an agency decision of policy to which the document contributed [citations omitted], or at least must show 'that the document is in fact part of some deliberative process' [citations omitted]." Id. (Kennard, J., dissenting). To show that a document is deliberative, a document generally must consist of opinions or recommendations. Id. As the majority in Times Mirror states, however, "[e]ven if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is 'actually . . . related to the process by which policies are formulated' or 'inextricably intertwined' with 'policy-making processes.'" Id. at 1342 (citations omitted).
In Times Mirror, the California Supreme Court traced the origins of the deliberative process privilege to "the traditional common law privilege that attached to confidential intra-agency advisory opinions, a privilege which was later codified in exemption 5 of the [federal Freedom of Information Act.]" Id. at 1339-40 n.10. Thus, in Times Mirror, the court construed a deliberative process privilege from federal decisions applying exemption 5 and from the broad language of Section 6255, which permits nondisclosure where the public interest in confidentiality clearly outweighs the interest in disclosure. Applying the privilege, the court held that the Governor's appointment schedules, calendars and notes revealing the daily activities of the Governor over a five-year period while not exempt as correspondence to and from the Governor under Section 6254(l) were nevertheless exempt under Section 6255's catchall provision. The court concluded that because "disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes" and disclosure "would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment," the intrusion into the deliberative process was "patent." Id. at 1343. In holding that the public interest in disclosure of such information was clearly outweighed by the interest in confidentiality, the court noted that, "[t]o disclose every private meeting or association of the Governor and expect the decision making process to function effectively, is to deny human nature and contrary to common sense and experience." Id.
The court further noted, however, that its holding did not mean the Governor's calendars, schedules or other records were beyond the reach of the public. Id. at 1345. The court recognized that given a more focused and limited request, a court might properly conclude that the interest in confidentiality does not clearly outweigh the public interest in disclosure. Id. Nevertheless, the court's holding in Times Mirror paved the way for a deliberative process privilege under the CPRA that reaches well beyond the one applicable to preliminary drafts, notes, and interagency and intra-agency memoranda under Section 7927.500.
Some subsequent cases have expanded this deliberative process privilege. For example, in Humane Society of the U.S. v. Superior Court, 214 Cal. App. 4th 1233, 1238, 1267, 155 Cal. Rptr. 93 (2013), the court found that the chilling effects of disclosing prepublication research and communications relating to a university funded study on the effects of a proposed voter initiative to restrict egg-laying hen houses clearly outweighed the public interest in disclosure. While recognizing a public interest in the records, the court nevertheless discounted that interest given the existence of other means of ensuring the accuracy of the study. Id. at 1268.
In Labor and Workforce Development Agency v. Superior Court, 19 Cal. App. 5th 12, *10, 18 Cal. Daily Op. Serv. 299 (Jan. 8, 2018), the court explained that disclosure of communications between an agency drafting legislation and stakeholders (farm workers unions) regarding safe harbor provisions in proposed legislation addressing the minimum wage of certain employees would tend to dissuade stakeholders on issues subject to future legislative efforts from communicating frankly, or at all. Because these concerns were presumably implicated by the trial court’s order requiring the agency to prepare an index of responsive records that included the identities of those with whom the agency communicated, the court held that the trial court erred in ordering the agency to prepare an index. Id., *11. Relying on Times Mirror, the court stated that “disclosing the identity of persons with whom the Agency’ ‘has met and consulted is the functional equivalent of revealing the substance and direction’ of the Agency’s ‘judgment and mental processes.’” Id.*10 (quoting Times Mirror, 53 Cal.3d at 1343).
This exemption also has been used to deny access to documents pertaining to applicants to local and county board of supervisors. See, e.g., Wilson v. Superior Court, 51 Cal. App. 4th 1136, 1143, 59 Cal. Rptr. 2d 537 (1996) (where applications for a position on a county board of supervisors were considered "predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees . . . ."); see also Cal. First Amendment Coal., 67 Cal. App. 4th at 172-74 (where applications and related communications maintained by the Governors’ office were withheld under the deliberative process privilege despite a lack of evidence the Governor even reviewed the applications because disclosure would likely reduce the applicant pool and discourage candor in those applying for the job, which would ultimately hinder the decision-making process).
In probably its broadest application to date, the deliberative process privilege has been used to deny access to phone billing records of city council members to show calls placed as part of official business. Rogers v. Superior Court, 19 Cal. App. 4th 469, 23 Cal. Rptr. 2d 412 (1993); see also San Joaquin Local Agency Formation Comm’n v. Superior Court, 162 Cal. App. 4th 159, 76 Cal. Rptr. 3d 93 (2008) (holding in non-CPRA case that deliberative process privilege applied to local legislative bodies).
Some courts have construed the deliberative process privilege more narrowly. For example, in ACLU v. Superior Court, 202 Cal. App. 4th 55, 76, 134 Cal. Rptr. 3d 472 (2011), the court rejected the contention that disclosure of the names of pharmaceutical companies from whom the Department of Corrections and Rehabilitation sought to acquire drugs used for state legal injections would reveal the mental processes of government employees. The department, the court held, made no showing that the substance of the deliberations related to the formation of any government policy or undermined the agency’s ability to perform its functions. Id. A declaration saying that disclosure would reveal “the government’s decisionmaking process” was held to be “manifestly inadequate” to meet the government’s burden of proof. Id.
Similarly, in Citizens for Open Government v. City of Lodi, 205 Cal. App. 4th 296, 307, 140 Cal. Rptr. 3d 459 (2012), the city sought to justify under the deliberative process privilege its withholding from the administrative record in a CEQA action emails between city staff and the city’s consultants regarding the preparation of a revised environmental impact report. It claimed such withholding was necessary to “foster candid dialogue and a testing and challenging of the approaches taken.” Id. The court stated that this showing was “simply a policy statement about why the privilege in general is necessary.” Id. Invoking the policy, the court held, was not sufficient. Id. The court also cautioned that “‘[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.” Id. at 306 (quoting Cal. First Amendment Coal., 67 Cal. App. 4th at 172-73); see also Golden Door Properties, LLC v. Superior Court, 53 Cal. App. 5th 733, 791, 792, 267 Cal. Rptr. 3d 32 (2020)(where county’s supporting declaration failed to discuss any individual document and instead discussed 1,190 documents as one unified group, repeating generalized policy rationales for non-disclosure, court held county failed to show that privilege applied to documents pertaining to an EIR project, including staff communications with outside environmental consultants, but remanded to superior court to allow county to submit further proof).
Government Code Sections 7930.105-7930.215: In an attempt to assist members of the public and state and local agencies in identifying exemptions to the CPRA, the Legislature has compiled known exemptions from public disclosure in Part 6 of Division 10, Sections 7930.105 through 7930.215. Cal. Gov't Code § 7930.000. These sections list records or information that by statute agencies may not be required to disclose and thus may fall within Section 7927.705's exemption from disclosure. The records and information listed in Part 6 are not inclusive and the listing of a statute in the Article does not itself create an exemption. Cal. Gov't Code § 7930.000. Currently there are more than 600 categories of documents under Part 6 ranging from "Acquired Immune Deficiency Syndrome" (Section 7930.105) to "Youth Authority" (Section 7930.215). After January 1, 1999, each addition or amendment to a statute that exempts any information contained in a public record from disclosure pursuant to Section 7927.705 must be listed and described under Part 6. Id.
Some noteworthy exemptions contained under Part 6 include records pertaining to: (1) bids received by government agencies for public works under Section 10304 of the Public Contract Code; (2) driver's arrest for traffic violations under Section 40313 of the Vehicle Code; (3) employee personnel files under Section 1198.5 of the Labor Code; (4) firearm sales or transfers under Section 12082 of the Penal Code; (5) grand jury information or indictments under Sections 924 and 938.1 of the Penal Code; (6) hazardous waste control, notice of unlawful hazardous waste disposal under Section 25180.5 of the Health and Safety Code; (7) Insurance Commissioner information from examination or investigation under Sections 1215.7, 1433 and 1759.3 of the Insurance Code (and other provisions regarding the Insurance Commissioner and insurance); (8) Department of Motor Vehicle records under Section 1808 to 1808.7 of the Vehicle Code; (9) rap sheet information under Penal Code Sections 11075, 11105 and 13330.
The deliberative process exemption is discussed elsewhere in this guide. The California Supreme Court has recognized that the burden and expense of segregating exempt from nonexempt information or producing voluminous records may be considered under Section 7922.000’s balancing test. ACLU v. Superior Court, 3 Cal. 5th 1032, 1043, 221 Cal. Rprt. 3d 832, 400 P.3d 432 (2017); ACLU v. Deukmejian, 32 Cal. 3d 440, 452-53, 186 Cal. Rptr. 235, 651 P.2d 822 (1982); see also Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 2d 847 (1998) ("A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. Records requests, however, inevitably impose some burden on government agencies. An agency is obligated to comply so long as the record can be located with reasonable effort.") (citation omitted).
Similarly, in Rosenthal v. Hansen, 34 Cal. App. 3d 754, 757, 761, 110 Cal. Rptr. 257 (1973), the court imposed a judicially created "reasonableness" standard to restrict access to public records where the request for a seven-volume, loose-leaf workbook was found to be voluminous. But see Becerra v. Superior Court, 44 Cal. App. 5th 897, 929-30, 257 Cal. Rptr. 3d 897 (2020)(rejecting Dept. of Justice’s argument that burden of reviewing, redacting and disclosing potentially millions of documents pertaining to other agencies’ police officers justified non-disclosure under catch-all exemption); CBS Broad. Inc. v. Superior Court, 91 Cal. App. 4th 892, 909, 110 Cal. Rptr. 2d 889 (2001) (rejecting as untenable position that costs in amount of $43,000 to compile accurate list of individuals granted criminal conviction exemption to work in licensed child day care facilities was valid reason for nondisclosure).
Arguably, government agreements to keep records confidential would be void as contrary to public policy. The agreement itself also could be disclosable as a public record under the CPRA unless exempt from disclosure under the pending litigation exemption of Section 7927.200, which expires upon termination of the litigation unless the record is protected under another statutory exemption such as attorney work product or attorney-client privilege.
The existence of a protective order does not necessarily provide a statutory basis for an agency to withhold an otherwise non-exempt public record. Practically speaking, however, agencies may be reluctant to produce public records subject to a court entered protective order absent a further court order. This means that a requester may be forced to sue under the CPRA for non-disclosure or to move in the action in which the protective order was entered to have the protective order lifted to advance the purpose and policies of the CPRA.
There are no published California cases discussing the intersection of the CPRA and the Health Insurance Portability and Accounting Act of 1996 (HIPAA) (42 U.S.C. § 1320(d)). Generally, Section 7927.705 of the CPRA authorizes an agency to withhold “[r]ecords, 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.” Cal. Gov’t Code § 7927.705.
HIPAA’s protections extend to “health information,” and “individually identifiable health information,” as those terms are defined under Section 1320(d). Even when records implicate such information, however, HIPAA authorizes disclosure or protected health information to the extent such disclosure is “required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.” CFR §164.512(a)(1). Interpreting this provision, other courts have held that the disclosure mandates of a state’s public records act allows disclosure of protected health information under HIPAA even absent require authorizations. See, e.g., Adams Cty. Historical Soc’y v. Kinyoun, 765 N.W. 2d 212 (2009); Cincinnati Enquirer v. Daniels, 844 N.E. 2d 1181, 1187-88 (Ohio 2006); Abbott v. Texas Dep’t. of Mental Health, 212 S.W. 3d 648 (Tex. App. 2006). This is so even if the open records laws do not specifically require disclosure of public records generally absent specific exemptions. See Abbott, 212 S.W. 3d at 663 n. 10, 664. Thus, courts have ruled that in considering exemptions under a state’s open records act, the public agency may not rely on HIPAA’s privacy rule to thwart disclosure. Id. (citing 65 Fed. Reg. at 82482 and discussing federal Freedom of Information Act disclosure laws as qualifying under Section 164.512(a)). California courts likely would follow suit.
Pursuant to Section 7927.705 of the CPRA, “[r]ecords, 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” are exempt from the mandatory disclosure provisions of the CPRA. Cal. Gov’t Code § 7927.705. Thus, if a record is exempt under the Drivers Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721 et seq., it would be exempt under the CPRA. The DPPA prohibits, with certain exceptions, including consensual disclosures and use for research, a state department of motor vehicles from disclosing personal information about any individual obtained by a department in connection with a motor vehicle record. 18 U.S.C. § 2721(a).
Generally, the California Vehicle Code provides that subject to specific provisions of law, all DMV records are open to public inspection. Cal. Veh. Code § 1808(a). However, Section 1808(e) of the Vehicle Code states that the DMV “shall not make available or disclose personal information about a person unless disclosure is in compliance with the Driver’s Privacy Protection Act of 1994.” Cal. Veh. Code § 1808(e). Consequently, at least one court has concluded that disclosure of information from a state DMV record is dependent on the provisions of the DPPA. See Cty. of Los Angeles v. Superior Court, 242 Cal. App. 4th 475, 488, 195 Cal. Rptr. 3d 110 (2015) (holding that vehicle impoundment forms (CHP 180 forms) were exempt from public disclosure under Cal. Gov’t Code § 6254(k) “as disclosure of personal information obtained from DMV records, without express consent from the vehicle owner, is prohibited by federal law under the DPPA.”).
Pursuant to Section 7927.705 of the CPRA, “[r]ecords, 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” are exempt from the mandatory disclosure provisions of the CPRA. Cal. Gov’t Code § 7927.705. Thus, if a record is exempt under the Family Educational Rights and Privacy Act (FERPA), (20 U.S.C. §1232g), it would be exempt under the CPRA.
However, in Poway Unified School District v. Superior Court, 62 Cal. App. 4th 1496, 1507, 73 Cal. Rptr. 2d 777 (1998), the court held that neither California’s Education Code pertaining to pupil records (Cal. Ed. Code § 49076) nor FERPA (20 U.S.C. § 1232g) governed tort claims filed against a school district arising from a hazing incident at a high school. One claim was filed by a student who pled guilty in juvenile court to sodomizing another student with a broomstick. Id. at 1499-5000. The court reasoned that just because a litigant has chosen to sue a school district does not “transmorgrify the Claims Act claim into a [‘education record’ or ‘public record’].” Id. at 1507.
Subsequently, the court in BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755, 49 Cal. Rptr. 3d 519 (2006), held that a report detailing allegations of misconduct against students by the district’s superintendent was not exempt from public disclosure under either the California Education Code or FERPA. It reasoned that “[a] public record is one that ‘directly relates’ to a student and is ‘maintained’ by the school.” Id. at 754. The statute, the court said, was “directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline reports, and the like.” Id. Because the investigation report was not “something regularly done in the normal course of business” and not “regularly maintains in a central location along with education records . . . in separate files for each student,” the court held the education statutes did not preclude access. But see Rim of the World Unified Sch. Dist. v. Superior Court, 104 Cal. App. 4th 1393, 129 Cal. Rptr. 2d 11 (2003) (holding federal FERPA preempted state statute requiring disclosure of student expulsion records); see generally Porten v. Univ. of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) (recognizing state constitutional right of privacy in student records).
The CPRA provides that “[a]ny reasonable segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempt by law.” Cal. Gov’t Code § 7922.525(b).
The CPRA requires an agency to “promptly notify the person making the request of the determination and the reasons thereof.” Cal. Gov’t Code § 7922.535(a). And when the request is in writing, the agency’s “determination that the request is denied, in whole or in part, shall be in writing.” Cal. Gov’t Code § 7922.540(a).
Public, unless compiled by law enforcement, for law enforcement purposes, and the prospect of law enforcement is concrete and definite. Compare Edias v. Superior Court, 87 Cal. App. 5th 530, 734-35, 303 Cal. Rptr. 3d 722 (2023)(holding privacy interests of deceased officer’s family and pubic interest in preventing chilling effect on public cooperation in future coroner’s investigations insufficient to justify non-disclosure under either the personnel files or catchall exemptions of the CPRA); San Francisco Examiner v. Plummer, 19 Med. L. Rptr. 1319 (1991) (in a decision not certified for publication, a superior court judge held that a county sheriff's department was required to release autopsy records of victims of the Nimitz Freeway collapse during the 1989 San Francisco earthquake) with Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1276, 88 Cal. Rptr.3d 847 (2009) (holding that an autopsy report produced by a coroner’s inquiries into a suspected homicide where there exists the definite prospect of law enforcement is an investigatory file compiled for law enforcement purposes within the meaning of Cal. Gov’t Code § [7923.600(a)]. Dixon, where the court said the report may be withheld under the investigatory records exemption of the CPRA, is arguably wrongly decided. The court’s decision turned on its determination that a coroner performing duties pursuant to an inquest into a criminally-related death is a law enforcement agency within the meaning of the investigatory records exemption of Section [7923.600(a)]. Dixon, 170 Cal. App. 4th 1271 at 1277. In so concluding, however, the court failed to cite or recognize the express provision directly governing a coroner’s inquest, including those involving investigations into the cause of death in criminally-related cases, which requires a coroner’s inquest be open to the public. Cal. Gov’t Code § 27491.6. Moreover, the court arguably applied an overbroad interpretation of the investigatory records exemption by holding that the duties of a corner pursuant to an inquest under Government Code Section 27491 are performed “as a law enforcement agency” within the meaning of the investigatory records exemption of Section [7923.600(a)] without any determination of whether the coroner is charged with the enforcement of criminal laws, as opposed to the enforcement of other laws, such as the issuance of subpoenas on witnesses or a summons of jury called to inquire as to the cause of death. See, e.g., Cal. Gov’t Code §§ 27492, 27499.
Moreover, earlier courts, before the adoption of the CPRA, had held that autopsy reports are public records. See People v. Williams, 174 Cal. App. 2d 364, 390, 345 P.2d 47 (1959)("An autopsy report is a record that the coroner is required to keep (Gov. Code § 27491) and is therefore, a public record (citations omitted)."); Walker v. Superior Court, 155 Cal. App. 2d 134, 138-39, 317 P.2d 130 (1957); see generally Cal. Gov't Code § 27491 (setting forth duties of coroners); Cal. Gov't Code § 27491.6 (requiring inquests performed by coroner be open to the public). The Legislature was no doubt aware of these decisions when it enacted the CPRA, and could have expressly exempted coroners' reports from public disclosure, but did not do so.
Both Section 7927.500, governing preliminary drafts and interagency or intra-agency memoranda, and Section 7922.000’s public interest balancing test encompassing through case law a deliberative process exemption are potential impediments to access to administrative enforcement records reflecting pre-decisional thought processes of the agency. Cal. Gov’t Code §§ 7927.500, 7922.000; see generally Citizens for a Better Env’t v. Dep’t. of Food & Agric., 171 Cal. App. 3d 704, 217 Cal. Rptr. 504 (1985) (agency did not meet its burden under [Section 7927.500] to show how the public’s interest in nondisclosure clearly outweighed the public’s interest in disclosure of reports on county’s enforcement of pesticide-use laws).
While Sections 7927.500 and 7922.000 may still be invoked over pre-decisional, deliberative documents, records reflecting final agency action, records considered in reaching a final determination, or records reflecting public employee wrongdoing arguably are public.
Generally exempt from disclosure. See Gov’t Code § 7929.000.
Public, unless preliminary and thus arguably exempt under Sections 7927.500 or 7922.000. Cal. Gov’t Code §§ 7927.500, 7922.000. If an agency subject to the Ralph M. Brown Act considered the budget in connection with any open meeting, the agency is precluded from relying on Section 7922.000 as a basis for its withholding. Cal. Gov’t Code § 54957.5(a).
Business and financial records are open to public access when used as the basis for a public agency's decision-making. San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983). However, information that constitutes a trade secret is generally exempt from disclosure. Gov't Code § 7927.705 (engrafting into CPRA exemptions under federal and state law, including provisions of California Evidence Code relating to privileges). The test for a trade secret is whether the matter sought to be protected is information (a) that is valuable because it is unknown to others, and (2) that the owner has attempted to keep secret. Amgen Inc. v. Health Care Services, 47 Cal. App. 5th 716, 734, 737, 260 Cal. Rptr. 3d 873 (2020)(holding in reverse CPRA action that pharmaceutical manufacturer’s drug price increase notices received by Cal. Correctional Health Care Services did not constitute a trade secret where notices were sent to over 170 purchasers who had incentive to use information to manufacturer’s detriment and without restrictions on their further dissemination). Trade secret protection is not absolute. See, e.g., Coal. of Univ. Emps. v. Regents of Univ. of Cal., 32 Med. L. Rptr. 1212 (Cal. Sup. Ct. 2003) (even assuming internal rates of return of private equity investments made by university were trade secrets, disclosure turns on balancing of interests and public interest in disclosure outweighed interest in nondisclosure).
Several provisions govern disclosure of various financial records. For example, statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish personal qualification for the license, certificate or permit applied for, are exempt from disclosure. Cal. Gov't Code § 7925.005. Financial data contained in applications for financing from the California Pollution Control Financing Authority is not subject to disclosure where an authorized officer of the Authority determines that disclosure of such financial data would be competitively injurious to the applicant and such data is required in order to obtain guarantees from the U.S. Small Business Administration. Cal. Gov't Code § 7924.505. Corporate financial data and corporate proprietary information furnished to a government agency by a private company for the purpose of permitting the agency to work with the company in retaining, locating or expanding a facility in California are exempt from disclosure. Cal. Gov't Code § 7927.605.
Contracts are public. Competitive proposals, while decided on a case-by-case basis, are arguably exempt under Section 7922.000’s public interest balancing test during the negotiation process but must be made public prior to final acceptance by the public agency to afford public input in the selection process. Michaelis, Montanari & Johnson v. Superior Court, 38 Cal.4th 1065, 1073, 44 Cal. Rptr. 3d 663, 136 P.3d 194 (2006).
Financial records submitted to an agency and used as a basis for its determination to increase rates on an exclusive public contract are public. See, e.g., San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983) (rejecting trade secret exemption over financial data submitted to city and considered in open meeting regarding rate increase for waste disposal services). But see STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 341, 109 Cal. Rptr. 2d 865 (2001) (holding that disclosure to successful bidder of legal memorandum and transmittal letter where disclosure was reasonably necessary to further interests of both parties in finalizing negotiations did not waive attorney-client privilege).
Tactics and strategy records are exempt. Other records are public. Cal. Gov't Code §§ 7928.405, 7928.410 & 7926.220(a)-(d).
Presumptively public, unless the public’s interest in nondisclosure clearly outweighs the public’s interest in disclosure under Section 7922.000 of the Government Code, or if some other express statute applies to the specific type of records under consideration. See, e.g., Cal. Gov’t Code § 7928.705 (real estate appraisals pertaining to the acquisition of property or prospective supply and construction contracts).
Disclosure of voter registration records is allowed for election, scholarly, journalistic, political or governmental purposes. Cal. Gov’t Code § 7924.000. The California driver's license number, the California identification card number, the Social Security number, any other unique identifier used for purposes of voter identification shown on a voter registration card, as well as the signature of the voter, are confidential. Cal. Elec. Code § 2194(b) & (d). However, other personal information regarding a voter, including home address, telephone number, e-mail address, occupation, precinct number and prior registration information shown on the voter registration card for all registered voters may be disclosed "to any person for election, scholarly, journalistic or political purposes, or for governmental purposes, as determined by the Secretary of State." Cal. Elec. Code § 2194; Cal. Gov't Code § 7924.000 (referencing Section 2194).
Election results are public and generally available on-line through the Secretary of State’s official website. See Statewide Election Results | California Secretary of State.
Referendum, initiative and recall petitions are exempt from disclosure except as to specified individuals, including the proponents of a petition if found to be insufficient. Gov't Code §§ 7924.100-7924.110.
Generally exempt. No provider of health care shall disclose medical information regarding a patient without first obtaining authorization as required by statute. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual). However, medical records of a tort claimant against a public agency are not exempt from disclosure because claimant by filing claim places alleged physical injuries and medical records substantiating them at issue. See Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984).
Licenses and applications to carry firearms are public. CBS Inc. v. Block, 42 Cal. 3d 646, 652-53, 725 P.2d 470, 230 Cal. Rptr. 362 (1986). However, certain information contained in the application is expressly exempt. Cal. Gov’t Code §§ 7923.800 & 7923.805 (information indicating when and where applicant is vulnerable to attack, information concerning applicant’s mental health, and home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates set forth in the application and license is exempt). The agency must segregate the exempt from non-exempt material. See Cal. Gov't Code § 7922.525.
Under Section 7929.200, an agency may withhold a document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operations and that is for distribution or consideration in a closed session. Cal. Gov't Code § 7929.200(a)&(b). . Under Section 7929.205(b), critical infrastructure information that is voluntarily submitted to the Office of Emergency Services for used by that office is exempt. No reported cases have discussed these exemptions. See generally Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1316, 89 Cal. Rptr. 3d 374 (2009) (rejecting county’s argument that GIS basemap data was exempt under federal Critical Infrastructure Information Act, since information was provided by County not to it, as required under Act).
Generally exempt. No provider of health care shall disclose medical information regarding a patient without first obtaining authorization as required by statute. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual). However, medical records of a tort claimant against a public agency are not exempt from disclosure because claimant by filing claim places alleged physical injuries and medical records substantiating them at issue. See Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984).
Personnel files are not per se exempt from disclosure. Portions may be exempt if disclosure constitutes an “unwarranted invasion of privacy.” Cal. Gov’t Code § 7927.700. A detailed discussion of case law under this exemption is discussed elsewhere in this guide.
Public. See Int’l Fed’n of Prof’l and Technical Eng’rs v. Superior Court, 42 Cal.4th 319, 64 Cal. Rptr. 3d 693, 165 P.3d 488 (2007); see also Cal. Gov't Code § 7928.400 (public employment contracts between a state or a local agency and any public official or public employee is a public record).
Non-Peace Officers: For non-public figure, public employees’ documents relating to employee wrongdoing must be disclosed if they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City Sch. Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (citing Am. Fed’n of State, Cty. and Mun. Emps. v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978)); see also Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violated sexual harassment policy); compare Associated Chino Teachers v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 543, 241 Cal. Rptr. 3d 732 (2018) (holding complaints against high school volleyball coach involving yelling, belittling student-athletes and holding practices at their homes were not substantial in nature sufficient to outweigh public employee’s privacy interest in personnel file).
Separately, where a complaint has been upheld by an agency or discipline imposed, even if only a private reproval, disciplinary records must be disclosed. See Marken, 202 Cal. App. 4th at 1275 (discussing case law and holding disclosure of investigation report required where district issued a written reprimand against teacher accused of violating sexual harassment policy).
For public figure, public officials, who have a diminished expectation of privacy, a lesser standard of reliability is applied in reviewing the records. BRV, Inc. v. Superior Court, 143 Cal.App.4th 742, 759, 49 Cal.Rptr.3d 519 (2006). In conducting an in camera review, courts look to determine whether the allegations are “so unreliable that [they] could not be anything but false.” Id. at 758-59.
Peace-Officers: Generally, peace officer disciplinary records are protected from disclosure under the California Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8. See discussion elsewhere in this guide.
In 2018 and 2021,however, the California Legislature enacted Senate Bill 1421 and Senate Bill 16, respectively which amended Penal Code Section 832.7 to expressly expand the public’s right of access to certain peace officer records maintained by state or local agencies. In its current form, the law mandates public access to the following eight categories of information: (1) incidents involving the discharge of a firearm at a person by a peace officer; (2) incidents involving the use of force by a peace officer against a person resulting in death or great bodily injury; (3) incidents involving a sustained finding of a complaint alleging unreasonable or excessive force; (4) incidents involving a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive; (5) incidents in which a sustained finding was made by a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in the sexual assault involving a member of the public; (6) incidents in which a sustained finding was made by a law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly related to the reporting, investigation, or prosecution of a crime, or directly related to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained findings of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence; (7) incidents involving sustained findings that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person based on race, religious creed, color, national orgin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and (8) incidents involving a sustained finding that a peace officer made an unlawful arrest or conducted an unlawful search. Cal. Penal. Code § 832.7(b)(1).
Senate Bill 1421 has been held to apply retroactively to subject incidents occurring before the legislation went into effect on January 1, 2019. See Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, 33 Cal. App. 5th 940, 941, 245 Cal. Rptr. 3d 398 (March 12, 2019). See also Ventura County Deputy Sheriffs’ Ass’n v. County of Ventura, 61 Cal. App. 5th 585, 594, 275 Cal. Rptr. 3d 843 (2021)(same).
A ”sustained” finding under the statute means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal… that the actions of the peace officer or custodial officer were found to violate law or department policy.” Cal. Pen. Code § 832.7(b). As long as there was an opportunity for an appeal, even if an appeal hearing isn’t completed, an internal investigation can be final and its findings remain sustained. Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039, 1053, 275 Cal. Rptr.3d 895 (2021). The disclosure obligations under the statute also apply where an officer resigns before an investigation has concluded. Cal. Gov’t Code § 832.7(b)(3).
These disclosure obligations apply to records held but not created by a custodian agency, such as the Department of Justice, even where the custodian is not the officer’s employing agency. Becerra v. Superior Court, 44 Cal. App. 5th 897, 918-19, 257 Cal. Rptr. 3d 897 (2020)(holding that section 832.7’s plain language makes clear that officer-related records in the Department of Justice’s possession are subject to disclosure regardless of whether such records concern peace officers employed by the department or by another state or local agency.)
Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8) of Section 832.7(b), records subject to disclosure under Section 832.7(b) “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Cal. Pen. Code § 832.7(b)(11).
There is no express exemption from disclosure for job applications. Disclosure of information as to education, training, experience, awards, previous positions and publications by the employee has been held to implicate no privacy or public policy exemption. Eskaton Monterey Hosp. v. Myers, 134 Cal. App. 3d 788, 794, 184 Cal. Rptr. 840 (1982). Nevertheless, applications for public office have been denied under the exemption for correspondence to and from the Governor (Cal. Gov’t Code § 7928.000; Cal. First Amendment Coal. v. Superior Court, 67 Cal. App. 4th 159, 78 Cal. Rptr. 2d 847 (1998)), and under the deliberative process exemption/catchall exemption (Wilson v. Superior Court, 51 Cal. App. 4th 1136, 59 Cal. Rptr. 2d 537 (1996)). Job applications and resumes of those actually chosen for the job, however, are not exempt from disclosure.
With respect to public employees, with some exceptions, “[t]he home addresses, home telephone numbers, personal cellular telephone numbers, and birthdates of all employees of a public agency shall not be deemed to be public records and shall not be open to public inspection…” Cal. Gov’t Code § 7928.300(a), Likewise, with some exceptions, “[u]nless used by the employee to conduct the public business, or necessary to identify a person in an otherwise discloseable communication, the personal email address of all employees of a public agency shall not be deemed to be public records and shall not be open to public inspection.” Cal. Gov’t Code § 7928.300(b)(1). Additionaly, “[n]o state or local agency shall post the home address or telephone number of any elected or appointed official on the internet without first obtaining the written permission of that individual.” Cal. Gov’t Code § 7928.205.
With respect to private citizens, “electronically collected personal information, as defined by [Government Code] Section 11015.5, that is received, collected, or compiled by a state agency” is not required to be disclosed under the CPRA. Cal. Gov’t Code § 7927.400. Under Section 11015.5(d)(1) “‘[e]lectronically collected personal information’ means any information that is maintained by an agency that identifies or describes an individual user, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, medical or employment history, password, electronic mail address, and information that reveals any network location or identity, but excludes any information manually submitted to a state agency by a user, whether electronically or in written form, and information on or relating to individuals who are users serving in a business capacity, including, but not limited to, business owners, officers, or principals of that business.” Cal. Gov’t Code § 11015.5(d)(1). However, this definition may not be construed “to permit an agency to act in a manner inconsistent with the standards and limitations adopted pursuant to the California Public Records Act…” Cal. Gov’t Code § 11015.5(e).
The CPRA also authorized the redaction of personal identifying information from certain records. See, e.g., Cal. Gov’t Code § 7923.805 (exempting from disclosure home address, telephone number of judicial or peace officers on applications and licenses to carry firearms).
In Lorig v. Medical Bd., 78 Cal. App. 4th 462, 468, 92 Cal. Rptr. 2d 862 (2000), the court held that it was not an unwarranted invasion of privacy to disclose the home addresses of state-employed physicians who voluntarily used their home address as their “address of record.”
Moreover, the non-disclosure requirements of the Information Practices Act, which does protect personal identifying information contained in agency records, expressly does not apply to disclosures pursuant to the CPRA. See Cal. Civ. Code § 1798.25(g).
Public. With no express exemption applicable to public employee expense reports, they are presumptively public and routinely disclosed.
Exempt. See Versaci v. Superior Court, 127 Cal. App. 4th 805, 818-22, 26 Cal. Rptr. 3d 92 (2005) (holding that the personal performance goals of a former superintendent of a community college district established each year between the superintendent and the board and maintained as confidential as part of her personnel file were exempt from disclosure under California Government Code Section 6254(c).
Non-Peace Officer Public Employees: Public where they “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” Bakersfield City Sch. Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1046, 13 Cal. Rptr. 3d 517 (2004) (upholding access to alleged incident of sexual harassment or intimidation by school principal even though district had found allegation not true) (citing Am. Fed’n of State, Cty. and Mun. Emps. v. Regents of Univ. of Cal., 80 Cal. App. 3d 913, 146 Cal. Rptr. 42 (1978)); see also Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1273, 136 Cal. Rptr. 3d 395 (2012) (quoting Bakersfield and discussing case law in context of substantiated complaint that teacher violated sexual harassment policy); compare Bakersfield with Associated Chino Teachers v. Chino Valley Unif. Sch. Dist., 30 Cal. App. 5th 530, 543, 241 Cal. Rptr. 3d 732 (2018) (holding complaints against high school volleyball coach for yelling, belittling student-athletes and scheduling practices at their homes were not substantial in nature sufficient to outweigh public employee’s privacy interest in personnel file).
Peace-Officers: Public under certain circumstances. Complaints against peace officers generally are protected from disclosure under the California Penal Code. See Cal. Penal Code §§ 832.5, 832.7, 832.8. In 2018 and 2021 however, the California Legislature enacted Senate Bill 1421 and Senate Bill 16, respectively, which mandate public access to certain officer-related records. In its present form, and subject to certain exceptions and authorized delays in disclosure, Section 832.7 requires release of eight categories of information: (1) incidents involving the discharge of a firearm at a person by a peace officer; (2) incidents involving the use of force by a peace officer against a person resulting in death or great bodily injury; (3) incidents involving a sustained finding of a complaint alleging unreasonable or excessive force; (4) incidents involving a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive; (5) incidents in which a sustained finding was made by a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in the sexual assault involving a member of the public; (6) incidents in which a sustained finding was made by a law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly related to the reporting, investigation, or prosecution of a crime, or directly related to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained findings of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence; (7) incidents involving sustained findings that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; and (8) incidents involving a sustained finding that a peace officer made an unlawful arrest or conducted an unlawful search. Cal. Penal. Code § 832.7(b)(1).
Senate Bill 1421 has been held to apply retroactively to subject incidents occurring before the legislation went into effect on January 1, 2019. See Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, 33 Cal. App. 5th 940, 941, 245 Cal. Rptr. 3d 398 (March 12, 2019). In rejecting a police association’s argument that the law applied only to incidents after January of 2019, the court explained that the law did not change the legal consequences for peace officer conduct occurring before 2019—a general requirement for retroactive application of new law—rather, it changed only the public’s right of access to peace officer records. Id. at 942. See also Ventura County Deputy Sheriffs’ Ass’n v. County of Ventura, 61 Cal. App. 5th 585, 594, 275 Cal. Rptr. 3d 843 (2021)(same).
A ”sustained” finding under the statute means “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal… that the actions of the peace officer or custodial officer were found to violate law or department policy.” Cal. Pen. Code § 832.7(b). As long as there was an opportunity for an appeal, even if an appeal hearing isn’t completed, an internal investigation can be final and its findings remain sustained. Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039, 1053, 275 Cal. Rptr.3d 895 (2021). The disclosure obligations under the statute also apply where an officer resigns before an investigation has concluded. Cal. Gov’t Code § 832.7(b)(3).
These disclosure obligations apply to records held but not created by a custodian agency, such as the Department of Justice, even where the custodian is not the officer’s employing agency. Becerra v. Superior Court, 44 Cal. App. 5th 897, 918-19, 257 Cal. Rptr. 3d 897 (2020)(holding that section 832.7’s plain language makes clear that officer-related records in the Department of Justice’s possession are subject to disclosure regardless of whether such records concern peace officers employed by the department or by another state or local agency.)
Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8) of Section 832.7(b), records subject to disclosure under Section 832.7(b) “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Cal. Pen. Code § 832.7(b)(11).
Public Employment Contracts: Public. Cal. Gov't Code § 7928.400.
Pension Benefits: Public. See Sacramento Cty. Emps.’ Ret. Sys. v. Superior Court, 195 Cal. App. 4th 440, 468; 125 Cal. Rptr. 3d 655 (2011) (concluding that public pensions are not private information and that county retirement system failed to demonstrate under Section 6255(a) of the Government Code a public interest in nondisclosure that clearly outweighed the public interest in disclosure); see also Sonoma Cty. Emps.’ Ret. Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011) (privacy interests of county retirees did not outweigh the public’s interest in access to names and gross benefit amounts); San Diego Cty. Employee Ret. Ass’n. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 3d 479 (2011) (concluding that “public employees lack a reasonable expectation of privacy in an expense [pension amounts] the public largely bears after their retirement”).
Accident reports are exempt. Cal. Veh. Code § 20012. Abstracts of accident reports required to be sent to the Department of Motor Vehicles in Sacramento, except abstracts of accidents which in the opinion of the reporting officer were the fault of another individual, are open to the public for inspection at the DMV during office hours. Cal. Veh. Code § 1808.
Public as to information that is expressly stated to be subject to disclosure in the statute. Cal. Gov’t Code § 7923.605(a), 7923.610, 7923.615, 7923.620.
911 tapes are not expressly exempt under the CPRA. Arguably, when calls for assistance involve an allegation of criminal wrongdoing, they may fall under the investigatory records exemption of Section 7923.600(a).. Under such circumstances, the detailed information culled from the tape and required to be disclosed under the statute would have to be disclosed, but not the tape itself. Cal. Gov’t Code § 7923.610, 7923.615 and 7923.620. However, not all calls to a 911 call center or local police department are or should be protected from disclosure under this provision. Section 7923.610 exempts only “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of” various law enforcement agencies, as well as certain “investigatory . . . files” maintained by those agencies. Cal. Gov’t Code § 7923.600. In Haynie v. Superior Court, 26 Cal. 4th 1061, 1071, 112 Cal. Rptr. 2d 80, 31 P.3d 760 (2001), the California Supreme Court made clear that this exemption must not be interpreted to “shield everything law enforcement officers do from disclosure.” The court emphasized that “officers make inquiries of citizens for purposes . . . that are unrelated to either civil or criminal investigations.” Id. “The records of investigation exempted under section [7923.600] encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred.” Id. (emphasis added). When a 911 call is made for medical assistance, for example, Section 7923.600 arguably is not implicated.
Investigatory records themselves are exempt from disclosure under Section 7923.600 of the Government Code. Cal. Gov’t Code § 7923.600. The exemption for investigatory records under Section 7923.600 is discretionary. Nothing precludes an agency from disclosing more than it is required to under the law. Cal. Gov’t Code § 7922.505.
The exemption for investigatory records and files does not terminate when the investigation terminates. Williams v. Superior Court, 5 Cal. 4th 337, 362, 852 P.2d 377, 19 Cal. Rptr.2d 882 (1993). The exemption has been held to apply to letters prepared after the conclusion of an investigation but that were related exclusively to the investigation. Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002).
While investigatory records are exempt from disclosure, specified facts from investigatory or security records must be disclosed unless disclosure would endanger the successful completion of an investigation or endanger a person involved in the investigation. Cal. Gov’t Code §§ 7923,610, 7923.615, and 7923.620.
For arrests, the agency must disclose such facts as the name, occupation, and detailed physical description of every individual arrested by the agency, as well as the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds must be disclosed. Cal. Gov’t Code § 7923.610.
For complaints or requests for assistance, the agency must disclose such facts as the time and nature of the response, the time, date and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. Notwithstanding these mandatory disclosure requirements, an agency, at the victim’s request, may withhold the name of a victim of certain specified sexual crimes as set forth in the statute. Cal. Gov’t Code § 7923.615.
Additionally, to obtain address information for individuals arrested by an agency or victims of crimes other than those expressly set forth in the statute, the requester must state under penalty of perjury that the information is sought for one of five specified purposes: scholarly, journalistic, political, governmental, or investigation purposes by a licensed private investigator. Cal. Gov’t Code § 7923.620. Moreover, the requester must declare under penalty of perjury that the information obtained shall not be used, directly or indirectly, to sell a product or service. Id.
The mandatory disclosure provision of Section 7923.610 relating to arrest information has been held to apply only to those records pertaining to contemporaneous police activity. Cty. of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993)(holding disclosure obligations did not apply to request for information about closed investigations going back 10 years); Kinney v. Superior Court, 77 Cal. App. 5th 168, 177-78, 181, 292 Cal. Rptr. 3d 392 (2022)(applying the Kusar court’s “contemporaneous” limitation to a request for the names of those arrested for DUIs during a one month period in 2020, which information at the time of the request was 11 to 12 months old, stating that “[a]fter 11 to 12 months, we do not see how releasing the arrestees’ name would serve the purpose of preventing clandestine police activity”).
The holding in Kusar has come into question at least as to the mandatory disclosure provisions related to complaints and calls for assistance under Section 7923.615. See Fredericks v. Superior Court, 233 Cal. App. 4th 209, 233-34, 182 Cal. Rptr. 3d 526(2015)(refusing to read any time limitation into the disclosure provisions of [Section 7923.615], reasoning, in part, that the statutory language relied on in Kusar to imply such a limitation was no longer present in the current text of the statute).
Exempt but certain information from arrest records must, with specified exceptions, be disclosed. Cal. Gov’t Code § 7923.610. Specifically, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation, state and local law enforcement agencies shall make public the following information pertaining to arrests:
(a) The full name and occupation of every individual arrested by the agency.
(b) The individual’s physical description including date of birth, color of eyes and hair, sex, height, and weight.
(c) The time and date of arrest.
(d) The time and date of booking.
(e) The location of the arrest.
(f) The factual circumstances surrounding the arrest.
(g) The amount of bail set.
(h) The time and manner of release or the location where the individual is currently being held.
(i) All charges the individual is being held upon, including any outstanding warrants from other jurisdictions, parole holds, and probation holds.
Cal. Gov’t Code § 7923.610.; see Cty. of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993) (holding disclosure requirements pertaining to arrest information under [Section 7923.610] applied only to current information pertaining to contemporaneous police activity, not to a request seeking closed investigation information going back ten years); see also Kinney v. Superior Court, 77 Cal. App. 5th 168, 177-78, 181, 292 Cal. Rptr. 3d 392 (2022)(applying the Kusar court’s “contemporaneous” limitation to a request for the names of those arrested for DUIs during a one month period in 2020, which information at the time of the request was 11 to 12 months old, stating that “[a]fter 11 to 12 months, we do not see how releasing the arrestees’ name would serve the purpose of preventing clandestine police activity”).
But see Fredericks v. Superior Court, 233 Cal. App. 4th 209, 182 Cal. Rptr. 3d 526 (2015) (rejecting Kusar time-limitations for disclosure requirements under [Section 7923.616] and calling into question Kusar’s continued validity in light of changes to statutes).
Exempt. Local summary criminal history information (“rap sheet”) is exempt from disclosure. Cal. Penal Code § 13300. Also, records pertaining to closed investigations unrelated to any contemporaneous law enforcement activities are not required to be disclosed under Government Code Section 7923.610. Only specific information from contemporaneous investigations must be disclosed. Cal. Gov’t Code § 7923.610. See Cty. of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993) (placing time-restriction on access to information required to be disclosed under [Section 7923.610] for arrests); see also Kinney v. Superior Court, 77 Cal. App. 5th 168, 177-78, 181, 292 Cal. Rptr. 3d 392 (2022)(applying the Kusar court’s “contemporaneous” limitation to a request for the names of those arrested for DUIs during a one month period in 2020, which information at the time of the request was 11 to 12 months old, stating that “[a]fter 11 to 12 months, we do not see how releasing the arrestees’ name would serve the purpose of preventing clandestine police activity”). But see Frederick v. Superior Court, 233 Cal. App. 4th 209, 233, 182 Cal. Rptr. 3d 526 (2015) (casting doubt on continued validity of Kusar in context of request for information under [Section 7923.615]).
The name and age of the victim shall be made public, unless the disclosure of particular information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation. However, the name of any victim of certain crimes defined by various provisions of the Penal Code relating to sex offenses may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. Cal. Gov’t Code § 7923.615(b)(1). Furthermore, a law enforcement agency is required to advise victims of their right to request that their names not be released. Cal. Penal Code § 293.
Address information of victims must also be disclosed where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a duly licensed investigator, except that the address of a victim of any crime defined by certain enumerated provisions of the Penal Code shall remain confidential. The requester must also declare under penalty of perjury that the address information obtained shall not be used to sell a product or service to any individual or group of individuals. Cal. Gov’t Code § 7923.620(a)(2) & (b).
Address information of arrestees must also be disclosed where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a duly licensed investigator, except that the address of a victim of any crime defined by certain enumerated provisions of the Penal Code shall remain confidential. The requester must also declare under penalty of perjury that the address information obtained shall not be used to sell a product or service to any individual or group of individuals. Cal. Gov’t Code § 7923.620(a)(1) & (b).
May be withheld at agency’s discretion if compiled for correctional or law enforcement purposes. However, once introduced in evidence in a criminal proceeding, public access to the information is presumed absent a constitutional showing justifying its sealing. Cal. Gov’t Code § 7923.600.
Exempt. The identity of confidential informants and any statements made by them are exempt from disclosure. Cal. Gov’t Code § 7923.605. California Evidence Code Section 1041 also protects the identity of confidential informants upon a proper showing. Cal. Evid. Code § 1041.
Exempt. Police techniques or “security procedures” are expressly exempt from disclosure under Section 7923.600.
Access appears to be discretionary. See Cal. Ops. Att’y Gen. 03-205 (2003)(sheriff has discretion to furnish copies of mug shots to public or media but once released a copy must be made available to all who make request). In California, law enforcement agencies routinely make mug shots available to the press. Indeed, in People v. McCloud, 146 Cal. App. 3d 180, 182, 194 Cal. Rptr. 75 (1983), the only published California case regarding mug shots, the court recognized that mug shots are routinely made available to the press and public and that this practice provides a variety of benefits to the public and the law enforcement system, as evident from the arrests at issue which “were brought about through the publication in a daily newspaper, of their mug shots taken after some earlier arrest.” The McCloud case does not discuss access to mug shots pursuant to the CPRA. It holds instead that mug shots are not part of the criminal summary history (“rap sheet”), which is a confidential record under Penal Code Section 13300.
Local summary criminal history information (“rap sheet”) is exempt from disclosure. Cal. Penal Code § 13300. Also, records pertaining to closed investigations unrelated to any contemporaneous law enforcement activities are not required to be disclosed under Government Code Section 7923.600. Only specific information from arrest records must be disclosed. Cal. Gov’t Code § 7923.610. See Cty. of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993) (placing time-restriction on access to information required to be disclosed under [Section 7923.610] for arrests); see also Kinney v. Superior Court, 77 Cal. App. 5th 168, 177-78, 181, 292 Cal. Rptr. 3d 392 (2022)(applying the Kusar court’s “contemporaneous” limitation to a request for the names of those arrested for DUIs during a one month period in 2020, which information at the time of the request was 11 to 12 months old, stating that “[a]fter 11 to 12 months, we do not see how releasing the arrestees’ name would serve the purpose of preventing clandestine police activity”). But see Frederick v. Superior Court, 233 Cal. App. 4th 209, 233, 182 Cal. Rptr. 3d 526 (2015) (casting doubt on continued validity of Kusar in context of request for information under [Section 7923.615]).
Despite these laws and pursuant to the Sex Offender Registration Act of Section 290 of the Penal Code, certain sex offenders are required to register with local law enforcement agencies when coming into the state or moving residences within the state. Cal. Penal Code § 290. Notwithstanding any other law, law enforcement agencies may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, “when necessary to ensure the public safety based upon information available to the entity concerning that specific person’s current risk of sexual or violent re-offense . . . .” Cal. Penal Code § 290.45. Additionally, under Megan’s Law, the Department of Justice is required to make information about registered sex offenders publicly available via the Internet. Cal. Penal Code § 290.46. There are four categories of sex offenders for purposes of the disclosure requirements. The name of the registrant, address, a photograph, the year of most recent conviction, year of release and subsequent felony convictions is among the information available on the DOJ’s website for some categories of registrants. Cal. Penal Code § 290.46; see also DOJ's Megan’s Law Website.
The constitutional right to privacy would apply to most individually identifying medical records, including emergency services records. The investigatory records exemption of Section 7923.600 of the CPRA, however, does not specifically apply to emergency medical services records. Thus, they would not fall within the exemption for investigatory files unless the records specifically relate to a criminal investigation (and thus properly belong in the investigatory file) and the likelihood of enforcement has ripened into something that is concrete and definite. See Williams v. Superior Court, 5 Cal. 4th 337, 356, 19 Cal. Rptr. 2d 882, 852 P.2d 377 (1993) (discussing investigatory files exemption).
There are no cases addressing access under the CPRA to biometric data. It is likely that such data is subject to the discretionary withholding provisions of Section 7923.600 as an investigatory record.
Search warrants are judicial records by statute. Cal. Pen. Code § 1534(a). After a search warrant has been executed and returned, or 10 days has lapsed since its execution, all “documents and records of the court relating to the [search] warrant . . . shall be open to the public as a judicial record.” Id. Because warrants and related records are judicial records, the CPRA is inapplicable.
There are no cases addressing access under the CPRA to physical evidence in the possession of investigating agencies. Some physical evidence would likely not constitute a writing within the meaning of the CPRA. See Cal. Gov’t Code § 7920.545. Physical evidence or records pertaining to physical evidence relating to criminal investigations are likely subject to the discretionary withholding provisions of Section 7623.600 as investigatory records or investigatory files. Once introduced in a judicial proceeding, however, physical evidence or records of physical evidence become subject to the public’s constitutional and common law rights of access to judicial proceedings generally. Courts, as the guardians of physical evidence during ongoing proceedings, are not likely to allow members of the public to take possession of physical evidence that cannot be copied, though viewing of some physical evidence may be arranged through the court.
Prison records are generally exempt. Cal. Gov’t Code § 7923.600. However, transcripts of parole hearings and any statements, recommendations, or other materials considered and incorporated therein, unless the material is confidential in order to preserve institutional security and the security of others, shall be made available to the public no later than 30 days from the date of the hearing. Cal. Penal Code § 3042. Probation reports filed with the court are open for public inspection from the date judgment is pronounced or probation granted (or in the case of a report arising out of a previous arrest from the date the subsequent accusatory pleading is filed) to and including 60 days from the date judgment is pronounced or probation granted, whichever is earlier. Cal. Penal Code § 1203.05. Thereafter, access to probation reports requires either a court order upon the filing of a petition by the individual seeking access, or a court order upon the court’s own motion. Id.
Section 7925.005 of the Government Code does not require disclosure of “[s]tatements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license, certificate or permit applied for.” Investigatory or security files “compiled by any other state or local agency for correctional, law enforcement, or licensing purposes” may be withheld under Section 7923.600(a) of the CPRA. Presumably, this exemption relates to files compiled for the purpose of enforcing criminal laws only. Otherwise, licensing records are presumptively public, and the agency must segregate exempt from nonexempt information from the records. Cal. Gov’t Code § 7922.525.
The name, credit history, utility usage date, home address, or telephone number of utility customers of local agencies are not required to be disclosed under the CPRA except under certain specified circumstances set out in the statute, such as an authorized request for release by an agent or family member of the person to whom the information pertains, or upon a determination that the public interest in disclosure clearly outweighs the public interest in nondisclosure. Cal. Gov’t Code § 7927.410. Also, geological and geophysical data, plant production data, and similar information relating to utility systems development are not required to be disclosed under the CPRA. Cal. Gov’t Code § 7927.300.
Appraisals for acquisition of property are exempt “until all the property has been acquired or all the contract agreement obtained.” Cal. Gov’t Code § 7928.705.
There are several provisions authorizing non-disclosure for specified time periods for records pertaining to various public agency negotiations with health care providers or regarding health plans. See generally Ch. 5 of Part 5 of Div. 5, Sections 7926.210-7926.235.
Separate provisions authorize a state or local agency to withhold records concerning their “deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights” under provisions referenced in the statute. See Cal. Gov’t Code §§ 7928.405 (state agencies), 7928.410 (local agencies). In Freedom Foundation v. Superior Court, 87 Cal. App. 5th 47, 302 Cal. Rptr. 3d 655, 661 (2022), the court rejected an argument that the categories of records listed under these exemptions were all required to be deliberative in nature to be exempt.
While a local agency may hold a closed session for the purpose of meeting with its real estate negotiator to discuss price and terms of the purchase, sale, exchange or lease of real property, there is no corollary provision under the CPRA to withhold records, though assertion of the public interest balancing test of Section 7922.000 to thwart access during the negotiation process is conceivable. See Cal. Gov’t Code § 54956.8 (while negotiation session is closed, statute requires agency to identify real property which is subject of negotiation, the person or persons with whom negotiations may occur, and the name of the negotiator for the agency).
There is no specific statutory exemption from disclosure but see below for exemptions for student records generally.
There is no specific statutory exemption from disclosure.
Elementary and secondary school pupil records are generally exempt. Cal. Ed. Code § 49073-79.7. Community college student records (Cal. Ed. Code § 67243) and university student records (Cal. Ed. Code § 76143) are also generally exempt. See generally Porten v. Univ. of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) (recognizing state constitutional right of privacy in student records); see also Rim of the World Unified Sch. Dist. v. Superior Court, 104 Cal. App. 4th 1393, 129 Cal. Rptr. 2d 11 (2003) (holding federal Family Educational Rights and Privacy Act preempted state statute requiring disclosure of student expulsion records). But see BRV v. Superior Court, 143 Cal. App. 4th 742, 754-55, 49 Cal. Rptr. 3d 519 (2006) (holding exemption for pupil records, as defined under Section 49061 of the Education Code, did not cover a report compiled to investigate complaints of malfeasance alleged against district administrators, even though the report identified students by name and detailed some student acts which resulted in discipline).
Depends. Foundations that do not receive public funds and whose voting members do not consist of any members of the school board may not constitute local or state agencies within the meaning of the CPRA. See Cal. Gov’t Code § 7920.510 & 7920.540; see, e.g., Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 829, 108 Cal. Rptr. 2d 870 (2001) (holding that nongovernmental, nonprofit auxiliary corporation affiliated with a state university, and which operated multi-purpose arena being built on university campus, was not a state agency under the CPRA).
Fundraising and donor information prepared, owned, used, or retained by a public agency, however, is public. See id. at 835 (holding individuals who purchased luxury suites in an arena being built on university campus entered into “public sphere” and by doing so “voluntarily diminished their own privacy interest” such that their names and license agreements retained by the university were not exempt from disclosure under the CPRA).
No provision of the CPRA expressly exempts university research materials. Such materials may be exempt, however, under the public interest balancing test of Section 7922.000 of the Government Code. See, e.g., Humane Society of the U.S. v. Superior Court, 214 Cal. App. 4th 1233, 1238, 1267, 155 Cal. Rptr. 93 (2013) (holding prepublication research and communications relating to a university funded study on the effects of a proposed voter initiative to restrict egg-laying hen houses clearly outweighed the public interest in disclosure under Section 6255); but see IIoh v. Regents of Univ. of Cal., 87 Cal. App. 5th 513, 303 Cal. Rptr. 3d 709 (2023) (holding in reverse CPRA action that catchall exemption did not apply to post-publication communications among professor, university and academic journal regarding retracted articles that raised issues of academic dishonesty).
With notable exceptions applicable to standardized testing under the Cal. Ed. Code § 99153, which sets forth specific materials and data pertaining to standardized testing that must be disclosed annually, test questions, scoring keys, and other examination data used to administer an academic examination are exempt from disclosure under the CPRA. See Cal. Gov’t Code § 7929.605; Cal. Ed. Code § 99153.
Section 7928.700 of the CPRA requires any contract entered into by a state or local agency, including the University of California, that requires a private entity “to review, audit, or report on any aspect of that agency” to be made public “to the extent the contract is subject to disclosure under this division.” Cal. Gov’t Code § 7928.700.
Section 7928.710 requires disclosure of specific information pertaining to alternative investments (i.e., private equity fund, venture fund, hedge funds, or absolute return fund) of public agencies, including the dollar amount committed and contributed to each alternative investment vehicle and the dollar amount of cash contributions made and received by the public investment fund from each alternative investment, while authorizing non-disclosure of other specified information. Cal. Gov’t Code § 7928.710.
Pensions: The appellate courts have concluded that the exact pension amounts of retired pensioners, like salaries of public employees, are public. Sacramento County Employees Retirement System v. Superior Court, 195 Cal. App. 4th 440, 472, 125 Cal. Rprt. 3d 655 (2011); Sonoma County Employees’ Retirement Ass’n v. Superior Court, 198 Cal. App. 4th 986, 1006, 130 Cal. Rptr. 3d 540 (2011); San Diego County Employees Retirement Assn. v. Superior Court, 196 Cal. App. 4th 1228, 1242, 127 Cal. Rptr. 479 (2011).
The California State Military Department includes the office of the Adjutant General, the California National Guard, the State Military Reserve, the California Cadet Corps, and the Naval Militia. Cal. Mil. & Vet. Code § 50. The National Guard includes the California Army National Guard and the California Air National Guard. See California Military Department--CalGuard.
Only a few statutes specifically address the public records status of records of the Military Department. Exempt from public disclosure are “requests” to investigate any complaint or allegation regarding: (1) a violation of law, including regulations, the Uniform Code of Military Justice, and any law prohibiting sexual harassment or unlawful discrimination; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public health or safety. Cal. Mil. & Vet. Code § 55(h)(3)(A). This statute is silent on the public records status of the actual complaint. The California Military Department Inspector General may not disclose “to any person or entity the identity of a person making a written request or an allegation or complaint” pursuant to Section 55(h)(1) of the Military and Veteran’s Code. Cal. Mil. & Vet. Code § 55(h)(3)(B). Annual reports of the inspector general containing a summary of investigations “shall be made available to the public and posted on the office’s Internet Web site.” Cal. Mil. & Vet. Code § 55(j)(1)(A).
Separately, the California Military Whistleblower Protection Act (Cal. Mil. & Vet. Code § 56) authorizes (but does not require) the inspector general to withhold from otherwise disclosable reports of whistleblower investigations summaries of interviews conducted, or any document acquired, during the course of the investigation. Cal. Mil. & Vet. Code § 56(f)(3). However, the inspector general is required to submit public quarterly reports of investigations under this statute. Cal. Mil. & Vet. Code § 55(j)(2). The inspector general has discretion to withhold the identities of individuals or redact facts from these public reports that might hinder investigations under state or federal law or the Uniform Code of Military Justice, and to decline to produce any of the underlying materials. Id.
There are no published cases discussing access to Military Department records under the CPRA.
In California there is a qualified privilege against discovery of tax returns. Webb v. Standard Oil Co., 49 Cal. 2d 509, 513, 319 P.2d 621 (1957); Fortunato v. Superior Court, 114 Cal. App. 4th 475, 479, 8 Cal. Rptr. 3d 82 (2003). Further, it is unlawful for the Franchise Tax Board or any other person “who in the course of his or her employment or duty has or had access to returns” to disclose the amount of income or “any particulars (including the business affairs of a corporation) set forth or disclosed therein.” Cal. Rev. & Taxation Code §§ 19542; 19542.1 (prohibiting inspection).
Notwithstanding these laws, the Franchise Tax Board is required to make public at least twice each calendar year a list of the 500 largest tax delinquencies in excess of one hundred thousand dollars. Cal. Rev. & Taxation Code § 19195.
Separately, the CPRA exempts from disclosure “[i]nformation required from any taxpayer in connection with the collection of local taxes if that information is received in confidence and disclosure of it to other persons would result in unfair competitive disadvantage to the person supplying the information.” Gov’t Code § 7925.000.
Public, except for those parts which contain medical, family and other statutorily specified information. Cal. Health & Safety Code § 102430.
Public, except for those parts which contain medical and family information. Cal. Health & Safety Code § 102430.
Certificates of marriage are public. However, confidential marriage certificates are not open to public inspection except upon order of the court issued upon a showing of good cause. Cal. Family Code § 511. Health and Safety Code §10361, which provided that State Registrar and county clerk records regarding dissolution of marriage, judgment of nullity or legal separation were closed to public inspection, was repealed in 1995. These records are now public.
Information about an ongoing outbreak of an infectious disease at a public facility is not expressly exempt and strong public policies support disclosure of such information to inform the public, dissuade undue panic and allow the public to judge the agency’s response. It can be anticipated that some concerns about whether disclosure will violate the Health Insurance Portability and Accountability Act (“HIPAA”) will be expressed, if not directly asserted to thwart disclosure. HIPAA would only apply, however, if the facility fell within the definition of a “health care provider” and the disclosure was of “individually identifiable health information,” as those terms are defined under 42 USCA Section 1320(d); 45 CFR 160.103. Even so, HIPAA expressly authorizes disclosure pursuant to other legal mandates, such as a state‘s public records act. CFR § 164.512(a). In a CPRA case over access to location and address information contained on a spreadsheet showing confirmed cases of COVID-19 outbreaks, the court held that the county was justified in redacting this information from the spreadsheet of confirmed cases under [Section 7922.000’s] catchall exemption where disclosure would discourage candid public cooperation with contract tracing, according to the county’s declarant. Voice of San Diego v. Superior Court, 66 Cal. App. 5th 669, 692, 280 Cal. Rptr. 3d 906 (2021).
The CPRA requires prompt agency response to records requests and allows immediate relief via the courts.
The request should be directed to the public official or employee who has custody of the records. The request need not be to the head of an agency or to a supervisor. Many agencies have implemented on-line CPRA request portals through which CPRA requests may be made and related communications between the requester and agency transpire.
Yes. A request must "reasonably describe an identifiable record" to be produced. Cal. Gov't Code § 7922.530(a). Such a request may be made orally. Los Angeles Times v. Alameda Corridor Transp. Auth., 88 Cal. App. 4th 1381, 107 Cal. Rptr. 2d 29 (2001) (CPRA does not require that requests for public records be in writing). However, if the request is in writing, then a written response is required. Cal. Gov't Code § 7922.540(a). Therefore, if a denial is anticipated or it is anticipated that the agency may drag its heels, the better practice is to make the request in writing, signed and dated by the person requesting the record, and to retain a copy. Otherwise, routine requests can be and should be made orally.
If an oral request is denied, then a letter should be sent or faxed immediately memorializing the request (describing the records requested) and the denial. Also, request that the agency, pursuant to Section 7922.000, justify its denial by providing the express provision(s) of the CPRA upon which the agency is relying and by providing the names and titles of each person responsible for the denial. This way, there will be a record of the actions that may be an exhibit in support of any later initiated court proceedings under the CPRA.
The CPRA does not require certain language be used in making a CPRA request. However, the request should “reasonably describe[] an identifiable record or records . . . .” Cal. Gov’t Code § 7922.530(a).
Yes, if the information requested is in an electronic format, the agency shall make that information available in any electronic format in which it holds the information or, if requested, in a format used by the agency to create copies for its own use or for provision to other agencies. Cal. Gov't Code § 7922.570(b)(1)&(2). If the request is for non-electronic records and the agency also has the information available in electronic format, the agency may inform the requester that the information is also available in electronic format. Cal. Gov’t Code § 7922.570(c). If the information is available in non-electronic format, an agency cannot make the information available only in electronic format. Cal. Gov’t Code § 7922.580(b). Section 6253.9 does not require release of records in electronic format where "release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained." Cal. Gov't Code § 7922.580(c).
The CPRA does not contain provisions for expedited processing. Instead, the CPRA requires that except where expressly exempt, public agencies must make records “promptly available to any person upon payment of fees covering the direct costs of duplication, or a statutory fee if applicable.” Cal. Gov’t Code § 7922.530(a). Absent unusual circumstances, as defined, the agency shall make a determination on the request within 10 days from receipt of the request. Cal. Gov’t Code § 7922.535(a) & (b).
Copies of nonexempt public records must be made "promptly" available to the requester. However, the CPRA expressly allows 10 days from receipt of the request for the agency to make a determination as to whether a specific record is a disclosable public record in the possession of the agency. Cal. Gov't Code §§ 7922.530(a), 7922.535(a). This does not mean that the agency may take 10 days on all requests for public records. It simply means that where a question exists about whether the record is exempt from disclosure or whether the record is in the agency's possession, the agency may take up to 10 days to make its determination. See Cal. Gov't Code § 7922.500 ("Nothing in this division shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.")
An agency also must allow for the inspection of public records at all times during the office hours of the agency. Cal. Gov't Code § 7922.525(a).
Extension of time for unusual circumstances. If the agency contends that the request is unusual and requires a search of separate locations, an examination of a voluminous amount of separate and distinct records, consultation with another agency with an interest in the records requested, or the compilation of data, writing of programming language or constructing a computer report to extract data, the time limit for the agency to make its determination regarding disclosure may be extended by an additional 14 days. In such "unusual circumstances," the head of the agency, or a designee, must provide written notice to the person making the request "setting forth the reasons for the extension and the date on which a determination is expected to be dispatched," which shall not be later than 14 days beyond the original 10 day period. When the determination is dispatched and if the agency determines that the records are disclosable, it must notify the requester of when the records will be made available. Cal. Gov't Code § 7922.535(b) & (c).
The CPRA requires prompt notification of agency determination. As soon as a determination is made whether to comply with the request, the agency must promptly notify the requester of the decision and of the reasons for any denial. Cal. Gov't Code § 7922.535(a). The agency is required to demonstrate that the record in question is exempt by citing the specific provision(s) of the CPRA or other law it is relying upon for its denial to disclose. Cal. Gov’t Code § 7922.000.
It is always a good idea to follow up a written or oral request with a telephone call to ask about the status of the agency's response to the request. This can be an opportunity to provide, on an informal basis, statutory or case law support for your request, if necessary.
A delay beyond the 10 plus 14-day period allowed under Section 6254(c) is arguably a violation of the CPRA giving a requester standing to sue the agency. See, e.g., Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1268 n. 14, 136 Cal. Rptr. 3d 395 (2012) (stating that district’s one-month delay in producing records—beyond the 24-day time period allotted to make the determination in unusual circumstance—to allow teacher to file preliminary injunction raised “serious questions” about whether the delay violated the CPRA); Rittiman v. Public Utilities Com., 80 Cal. App. 5th 1018, 1038, 295 Cal. Rptr. 3d 285 (2022) (characterizing seven-month delay between time commission accepted requester’s administrative appeal without ruling on it and the filing of petition for writ of mandate as “egregious by any measure” and thus concluding that petitioner was not required to wait any longer).
A lawsuit is a costly method to obtain a response, however. Practically speaking, filing a writ petition or an action for declaratory or injunctive relief may be premature if the agency has not definitively denied the request. On the other hand, if the delay is unreasonable and it becomes clear that the agency is refusing to respond or has gone substantially beyond the 10 plus 14-day period, then it might be worthwhile to file a lawsuit, even if it is only to get a response from the agency. In this circumstance, writing the agency and informing it that suit will be filed absent a written response or production of records by a stated date, would assist in establishing that the inaction is a violation of the CPRA and an intended denial by the agency.
Another recourse to encourage a response is to send a second letter, following up on the original request, setting forth statutory and case law support for disclosure and advising the agency that its delay is in violation of the CPRA. Bringing public attention to the matter, through local media or public officials overseeing the agency also may prompt action. Retaining an attorney to confer with the agency is also an effective approach to excessive agency delay.
The CPRA does not mention administrative appeals, but provides for immediate access to any court of competent jurisdiction, without the need to exhaust administrative remedies. Cal. Gov't Code § 7923.000. State agencies, however, may have adopted regulations for optional administrative appeals. See generally Cal. Gov't Code § 7922.630. Additionally, many municipalities have adopted sunshine ordinances which may allow for internal review of the municipality's denial.
The Attorney General is not empowered to enforce the provision of the CPRA unless the AG itself has been denied access to public records under the Act.
While the Attorney General’s Office does not handle administrative appeals from a CPRA denial, it does issue opinions in various matters that have persuasive effect. When the law is unsettled or unclear, seeking an opinion from the Attorney General on the matter may be an avenue to persuade an agency to comply with the request.