Q: California animal shelters use sodium pentobarbital to perform euthanasia on shelter animals by lethal injection. Sodium pentobarbital is a Class 3 controlled substance, and consequently, its use is regulated by state and federal law. Shelters are required to keep a log of euthanasia performed in order to keep track of the usage of the controlled drug. Each line of the log contains the dosage administered, the bottle number, the amount remaining in the bottle, and the name or initials of the person performing the procedure.
Often, when this log is sought in a CPRA request, the animal services agency will redact the name/initials of the staff member performing the euthanasia and claim that the employee’s privacy outweighs the public’s interest. However, it seems to me that the public has a strong and legitimate interest in knowing this information in order to adequately understand and monitor the conduct of the animal shelter, particularly since a controlled substance is involved and since staff members performing euthanasia in California are required by law to be trained and certified.
Also, since there is a state mandate for municipal shelters to accept stray dogs, and the shelter has chosen euthanasia as a means to meet that mandate, I would think that the performance of euthanasia is clearly the conduct of the people’s business and not in any way a personal or private activity. Is there any case law that would directly apply to this situation?
A: The California Public Records Acts (“PRA”) applies to “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.” Govt. Code § 6252(e). Under the Public Records Act, all public records are presumed to be open unless some exemption applies.
When a member of the public makes a written request for a record, the agency is required to respond in writing (typically within 10 days), and if claiming the records are exempt, must cite the specific exemption and how it applies. Gov’t Code § 6253(c).
It sounds like in the situation you describe, the agency may not have cited any specific exemption that would apply to the redaction of the names of those responsible for euthanizing animals at the shelter.
If this is the case, as a matter of course, you should write back to the agency and ask that it provide you with both the exemption and an explanation of how the exemption applies to the portion of the record that the agency is withholding, i.e., the names. In this way, you can also respond to the agency with arguments of your own.
My guess is that the agency may be claiming the so-called “catch-all” exemption, found in Government Code section 6255. This exemption requires a strong showing that on the facts of the particular case, the public interest in withholding the record from public view far outweighs the public interest in releasing the record. This exemption is broad and undefined, and is often improperly invoked by agencies when no other exemption applies.
In any case, both the PRA and court decisions interpreting the PRA require the law and its exemptions to be narrowly construed in favor of disclosure. If indeed, the agency claims this exemption, you should respond by pointing out that the PRA favors disclosure, and that the agency bears the burden of explaining how the public is better off not knowing the names.
You might also want to argue that there is a strong public interest in knowing the specific names of the individuals who are euthanizing animals, especially given that these people must be certified.
In sum, these cases are very fact dependent, but you have some strong arguments for why the names should be disclosed. It does seem that the public has a legitimate interest in monitoring the activities of these shelters, particularly when stray dogs are at issue. I suggest writing back to the agency to find out what exemption it is claiming and then responding accordingly.
Bryan Cave 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.