Q: In 2014, I was working as a pharmacist for a temp agency that sent me to a District Hospital for three months. This hospital had many issues, and I tried to fix some of them. After I left, a CBOP inspector (a specially trained pharmacist) investigated the hospital pharmacy. In December of 2015, I received a letter from the CBOP citing me for a total of $5000.
I was advised by my attorney that since it is a government agency, the citation cannot be fought like a criminal case or a civil case. He called it per se. So I am making payments on it. It seems that the DCA is funded by its licensing and enforcement activities.
This made me very curious about this case. I requested information from the CBOP and I was given one-line responses like “It is still open.” Researching, I found a CBOP document released to Buzzfeed with 246 pages of documents of citations and CBOP actions regarding a separate case. I noted that the letter referred to the CPRA. So, I sent another email invoking the CPRA to an information officer at the DCA level.
I requested full disclosure of the 2014 caseDen.
According to the CBOP license verification website, the District Hospital downgraded their hospital pharmacy license to a mere drug room license in 2016. I am putting together a presentation on pharmacy regulations for managers and wished to assemble as much information as possible. Your organization certainly deserves support if you fight information suppression like this. I am stunned.
I made a request to the California Board of Pharmacy, which is a subdivision of the California Department of Consumer Affairs. I was under the impression that some information was public. It seemed like a broad extension of the exemption. This is how they replied:”I just now reviewed the correspondence in this email chain that you have already had with the Board of Pharmacy.
The person who fulfills all Public Records Act requests for the Board of Pharmacy is very efficient and she would have provided you with any documents that are public. No documents that are part of an investigation are public. Government Code section 6254, subdivision (f) expressly exempts from disclosure investigatory files of agencies, including inspection reports and complaints. Moreover, certain of the records that pertain to pending litigation to which the board is a party are also exempt from disclosure pursuant to Government Code section 6254, subdivision (b).
At this time, you have no other recourse for having your request fulfilled.
A: I’m sorry to hear the California Board of Pharmacy has not been forthcoming with the information you seek. Under the California Public Records Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code section 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
The PRA exempts from disclosure “records pertaining to pending litigation to which the public agency is a party … until the pending litigation or claim has been finally adjudicated or otherwise settled.” Gov’t Code section 6254(b). Note that the Court of Appeal has said that “[a] document is protected from disclosure under the pending litigation exemption only if the document was specifically prepared for use in litigation.” County of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830 (2000).
The PRA also exempts investigatory records as set forth in Gov’t Code § 6254(f) which includes, in relevant part:
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.
Therefore, records of investigations by a state agency may be exempt from disclosure, as well as documents prepared for use in the agency’s litigation.
However, documents relevant to your presentation and incidental to the investigation (but not created for it) would not be exempt. In Uribe v. Howie, the court suggested that in order to fit within the Gov’t Code § 6254(f) exception, a report must either be created or used for licensing or investigatory purposes.
In Uribe, the plaintiff farm worker suffered health problems attributed to pesticides. The county agricultural commissioner denied plaintiff’s CPRA request to inspect mandatory reports filed by farmers who had sprayed pesticides in the area. The commissioner argued that the reports belonged to investigatory files compiled for “licensing” purposes.
The Court of Appeal rejected the argument because licensing was not the primary purpose for which the files were compiled. Uribe v. Howie, 19 Cal. App. 3d 194, 213 (1971).
“[P]esticide applicator spray reports had been used to review the licenses of the applicators on various occasions. However, this was not the primary purpose they were compiled. Nor was there any testimony that any of the reports were being put to such a purpose at the time of trial. If some reports were currently being used to investigate an applicator, the reports relating to that applicator would be exempt, but not all the reports.” Id. “To say that the exemption created by subsection (f) is applicable to any document which a public agency might, under any circumstances, use in the course of a disciplinary proceeding would be to create a virtual Carte blanche for the denial of public access to public records.” Id. at 213. Courts have held the investigatory file exemption applies only when there is “a concrete and definite prospect” of “criminal law enforcement” proceedings. State of California ex rel. Div. of Indus. Safety v. Superior Court, 43 Cal. App. 3d 778, 784 (1974); Dixon v. Superior Court, 170 Cal. App. 4th 1271, 1277 (2009).
You might want to send a follow-up letter to the agency and suggest you are willing to work with them to identify disclosable records, but remind them of their duty to assist you in making a focused and effective request that reasonably describes identifiable records, and to provide suggestions for overcoming any practical basis for denying access to the records or information sought. Gov’t Code § 6253.1(3).
You should remind the agency that attorneys’ fees are available should you be required to bring a lawsuit to enforce your rights under the Act. If the agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Gov’t Code § 6259.
Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d) — a fact that you may want to draw the agency’s attention to in your next correspondence.
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.