A&A: Request For Public Employee W2 Forms Fulfilled, But Heavily Redacted. Are The Redactions Legal?

Q: I submitted a CPRA request for W2’s for a group of public school employees. When I received the W2 forms, I expected the individual’s Social Security Number and address to be redacted, but the school also redacted the information for the federal income tax withheld, social security tax withheld, medicare tax withheld, “other” withholdings/contributions (Box 14 items which include employer pension/STRS contributions on behalf of the employee), and state income tax withheld.

When I asked to have these redactions removed, the school’s legal counsel responded with a letter that stated that would be an unwarranted invasion of privacy and not serve the public interest. Is there an accepted standard for what W2 information is public and what is not? I feel that the employer pension contributions in particular would be considered part of the compensation that should be public information.

A: Under the California Public Records Act (CPRA), 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,” Cal. Gov. Code § 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 CPRA contains many exceptions to its disclosure rules, including an exemption from disclosure for personnel, medical, and similar files maintained for public employees. Cal. Gov. Code § 6254(c). This exemption is commonly invoked when a public agency believes a request seeks information pertaining to identifiable public employees that is private or controversial. This exemption was created 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). We note the California Supreme Court has held that the personnel records exemption does not apply to the salary information of public employees. Int’l Fed’n of Prof’l & Tech. Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 338, 165 P.3d 488, 499 (2007). Therefore, to the extent the withholding information reveals details of the employee’s personal and family life, that information could be exempt from disclosure. To the extent pension contributions constitute part of a public employee’s overall compensation, the personnel records exemption may be less likely to apply.

We are unaware of an accepted standard for making the specific determination as to tax withholding information, and as a result we cannot say for certain that the school district’s determination is unreasonable. However, we can state generally that “a court determining whether personnel records should be disclosed first must determine whether disclosure of the information would compromise substantial privacy interests; if privacy interests in given information are de minimis disclosure would not amount to a clearly unwarranted invasion of personal privacy.” BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755 (2006) (emphasis added).  Further, there must be a “clear overbalance” on the side of confidentiality to justify nondisclosure. Id. at 756. This indicates that the privacy interests must be clearly substantial and the invasion of privacy clearly unwarranted.

We note that the CPRA also contains a “catch-all” exemption, which the district may invoke here.  A record need not be disclosed if the agency 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.” Cal. Gov. Code § 6255(a) (emphasis added). This exemption is broad and routinely invoked by public agencies in denying access to public records, but it often does not justify non-disclosure, as the agency must set forth facts showing that the public’s interest in not releasing the documents clearly outweighs the interest in disclosure—the agency’s own interest in nondisclosure is not considered. Coronado Police Officers Assn. v. Carroll, 106 Cal. App. 4th 1001, 1015-1016 (2003).

If you believe these records are being wrongfully withheld, your ultimate recourse is to file a lawsuit, though it can be fruitful to continue corresponding with an agency after denial to explain their errors.  A lawsuit under the CPRA is initiated by submitting a verified petition to a court asking it to issue a writ of mandate directing the agency to release the requested records. Cal. Gov. Code § 6258 provides that “Any person may institute proceedings for injunctive or declarative 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.” If you are successful in proving a violation of the public records laws, the court will order the agency to release the records, and the agency will be liable for your court costs and attorney’s fees. Cal. Gov. Code § 6259(b), (d). However, if the court finds your suit is “clearly frivolous,” you will be responsible for the agency’s court costs and reasonable attorney’s fees in defending the lawsuit. Cal. Gov. Code § 6259(d).

More information about the CPRA can be found at the First Amendment Coalition’s website here.

Bryan Cave Leighton Paisner 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.  No attorney-client relationship has been formed by way of this response.