A&A: Are government contractors’ 1099’s disclosable?

Q: I am considering a request for the 1099 form issued by a local agency to their general counsel. They are the worst violators of CPRA I have ever experienced. If I do not cite very specific statute and write the request so carefully that virtually all possibilities of misconstruction are eliminated, I will get a “no such records exist,” which is their default answer until they are challenged and provided “clarification.”

A: Any qualifying records must be disclosed unless a specific provision of the California Public Records Act or other law exempts them from disclosure. However, there are so many highly-specific exemptions, that it can be difficult to predict whether an exemption for 1099 forms has been created.

For instance, there is the possibility that some provision of the federal Internal Revenue Code has created an exemption for the disclosure of 1099s (they are federal forms, after all). I am not aware of any, but the possibility cannot be eliminated.

It’s also worth noting that generally tax forms are not public to the extent that you could not get them from the IRS. There certainly is a chance that this would relieve a state agency of any obligation to do the same.

Bearing that in mind, there may be an alternative method to get the information you desire. Personnel files are generally exempted under Gov’t Code § 6254(c); however, the California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public.

The International Federation of Professional Engineers v. Superior Court, 42 Cal. 4th 319 (2007) specifically discusses obtaining the names and salaries of employees making more than $100,000, so at the least, this will provide you with access to the salary information of highly-paid employees.

Citing that case and requesting access to the salary/financial information to the general counsel of the local water agency should get you to the 1099s (barring an Internal Revenue Code exemption).

If the 1099s aren’t available through that avenue, then at the least, you should be able to get pay stubs or other equivalent records.

I encourage you to file a written request for the records you seek because a written request requires the agency to provide a written response. Gov’t Code § 6255(b). If they reject your formal request, their response will need to identify the exemption or other justification for their denial. You may want to consider pre-empting their “no such records exist” response and remind them of this requirement.

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.