A&A: Is the list of employees taking voluntary buyouts a public document?

Q: I am a reporter covering the public district hospital. I want to know if a list of 74 employees who accepted voluntary buyouts is a public document. I requested this list from the hospital’s PR person, and she said she would provide it only on condition that I promise not to publish the names. I probably won’t use more than a few names (for people I might quote), but if the document is public, I shouldn’t have to make such a promise.

The hospital is owned by district residents who pay the hospital an assessment through their property taxes –it’s about 1 percent of the hospital’s budget. They have a publicly elected board of directors.

A: The Public Records Act applies to all local agencies, including publicly funded special districts. Gov’t Code § 6252(a), (c). Please note that some hospitals are owned and operated by local governments, and are therefore subject to the PRA.

Also, many publicly owned hospitals are leased to private companies, which operate the hospitals and employ doctors, nurses and other staff. Even these privately run hospitals may be subject to the PRA. Government Code section 6252(a) specifically provides that the Act applies to “entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” Section 54952(d) (which is part if California’s open meeting law, known as the Brown Act), provides that a “legislative body” that is covered by the Brown Act, and, through 6252(a), also covered by the Public Records Act, includes:

The lessee of any hospital the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises any material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority.    Gov’t Code § 54952(d).

You state that the hospital here is a “public district hospital,” owned and supported by district residents, which sounds like it is probably governed by the Public Records Act. However, you may want to doublecheck to be sure that the hospital district is indeed a “local agency” or “public agency” within the meaning of the Public Records Act before asserting any right to records pursuant to that law.

Under the PRA, “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” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Gov’t Code Section 6252-6253.

One of the exemptions under the Act, which the hospital district might try to assert, is for “personnel” records. Gov’t Code § 6254(c). This exemption is routinely invoked when a public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial.

However, this exemption was developed to protect intimate details of personal and family life, not official business judgments and relationships. Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004).

The California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public. See International Federation of Processional Engineers v. Superior Court, 42 Cal. 4th 319, 331 (“[t]he ‘broadly based and widely accepted community norm[]’ applicable to government employee salary information is public disclosure”).

Similarly, the Supreme Court held that records containing the names, employing departments, and hiring and termination dates of California police officers included in the Commission on Peace Officer Standards and Training’s database did not come under any exemption of the Public Records Act. Commission on Peace Officer Standards and Training v. Sup. Ct., 42 Cal. 4th 278, 284 (2007).

The Court remanded to the trial court to determine if any information relating to particular officers or categories of officers should be redacted from the records due to safety or efficacy (i.e., revelation of the identity of undercover officers) that might be jeopardized by disclosure. Id.

It does not seem that in the situation that you describe, there would be any privacy, safety or other concerns that would outweigh the public’s interest in knowing the identity of employees who benefited from the buyout program. It does not seem that release of the list should be conditioned upon an agreement by you to withhold the names of employees.

Please also be aware that the Act contains a “catch-all” exemption that agencies frequently attempt to invoke, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “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.” Gov’t Code § 6255(a). This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure.

If you haven’t already done so, you may want to consider putting your request in writing, and ask that the district explain any grounds for denial of your request. You can find additional information regarding the Public Records Act, including sample request letters, on the FAC’s website here: https://firstamendmentcoalition.org/category/resources/access-to-records/

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.