Are government employee hiring records accessible under the CPRA?

Answer

The CPRA and citing exemptions

The California Public Records Act (“CPRA”) generally requires state and local agencies to disclose any public record on request to any member of the public unless the record falls within a specific statutory exemption from disclosure. Govt. Code §§ 7922.525, 7922.530. General information about the CPRA, including a sample request form, is available on the public records handbook page of our website.

A “public record” is “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.” Govt. Code § 7920.530(a).

A “writing” is “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Govt. Code § 7920.545.

If one makes a written request for records that is denied in whole or in part, the agency must provide a written response stating the specific exemptions asserted, which it would have the burden to justify if challenged in litigation. Govt. Code §§ 7922.000, 7922.540.

In particular, “An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or 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.” Govt. Code § 7922.000(a). “The notification of denial shall set forth the names and titles or positions of each person responsible for the denial.” Govt. Code § 7922.540(b).

The purpose of requiring an agency to identify the specific exemptions on which it is relying to withhold particular records is to enable the requester to make an informed assessment of the merits of the agency’s position. As one court noted with respect to the federal Freedom of Information Act (“FOIA”), on which the CPRA is largely modeled, “merely stating that ‘for example’ an exemption might apply is inadequate to raise a FOIA exemption.” Maydak v. United States DOJ, 218 F.3d 760, 765 (D.C. Cir. 2000).

General background on CPRA personnel exemption

It is possible an exemption for “personnel, medical, or similar files” would apply to a records request for hiring records for a government position, because such records are not released to a CPRA requester if disclosure “would constitute an unwarranted invasion of personal privacy.” Govt. Code § 7927.700. This exemption typically requires balancing the employee’s right to privacy against the public’s interest in disclosure. Braun v. City of Taft, 154 Cal. App. 3d 332, 345 (1984).

This balancing test is similar to the elements of the CPRA’s “catchall” exemption, Govt. Code § 7922.000, formerly § 6255, under which a record may be withheld if any agency demonstrates “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.” See Braun, 154 Cal. App. 3d at 345. As a practical matter, the analysis is effectively the same under the personnel and catchall exemptions, and it depends on the facts of each case.

This balancing test also parallels that under the state constitutional right to privacy, Cal. Const., Art. 1, § 1. See Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4th 1250, 1271 (2012) (noting “strong public policy supporting transparency in government” that is “grounded in both the California Constitution and the CPRA” can “outweigh constitutional privacy interests” and rejecting privacy claim against disclosing records related to teacher’s misconduct).

The purpose of the exemption is to “protect information of a highly personal nature which is on file with a public agency,” typically a “public employee’s personnel folders or sensitive personal information which individuals must submit to [the] government.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 777 (1983); see also, e.g., Iloh v. Regents of Univ. of Calif., 87 Cal. App. 5th 513, 528 (2023) (noting this exemption was “developed to protect intimate details of personal and family life, not business judgments and relationships” and did not clearly apply to external “correspondence” about alleged plagiarism).

According to one court, “As a threshold matter, the court must determine whether the records sought constitute a personnel file, … or other similar file. If so, the court must determine whether disclosure of the information would compromise substantial privacy interests; if privacy interests in given information are de minimis [meaning too small to be meaningful] disclosure would not amount to a clearly unwarranted invasion of personal privacy. Lastly, the court must determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure. In weighing these competing interests, we must determine the extent to which disclosure of the requested item of information will shed light on the public agency’s performance of its duty.” Associated Chino Teachers v. Chino Valley Unified School Dist., 30 Cal. App. 5th 530, 539 (2018) (cleaned up).

Job Applications and Qualifications of Persons Hired

Under FOIA Exemption 6, some federal courts have held the names of unsuccessful applicants for public employee positions are exempt from disclosure. Pinson v. United States DOJ, 202 F. Supp. 3d 86, 114 (D.D.C. 2016) (“[T]he individual has a considerable privacy interest in avoiding having his or her non-selection disclosed to the public, a disclosure which would likely cause embarrassment … Although the public has an interest in evaluating the competence of individuals who are appointed as government employees, in the case of individuals who are not ultimately selected, the privacy interest outweighs public interest in disclosure.”) (cleaned up); Neary v. FDIC, 104 F. Supp. 3d 52, 57-60 (D.D.C. 2015) (permitting withholding of candidates interviewed for a specific FDIC employee program).

However, once employees are hired, records showing their professional qualifications are not necessarily exempt from disclosure in their entirety. See Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788, 794 (1982) (where plaintiffs sought records showing auditor’s “professional qualifications,” court rejected argument that such disclosure was “an unwarranted invasion of his privacy,” noting “information as to the education, training, experience, awards, previous positions and publications of the auditor … is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption”). Potentially, certain portions of applications, such as home addresses or telephone numbers, might be redacted, but that would not necessarily justify withholding the records entirely.

Public employee contracts

“Every employment contract between a state or local agency and any public official or public employee is a public record” that must be disclosed on request. Govt. Code § 7928.400; see also Braun v. City of Taft, 154 Cal. App. 3d 332, 344 (1983) (noting that “in California, employment contracts are public records and may not be considered exempt”).

Public employee salaries and other personal details

The California Supreme Court has held that assuming payroll records qualify as personnel or similar files, the public’s interest in disclosure of public employees’ names and salaries generally outweighs any privacy interests of the employees due to “the strong public interest in knowing how the government spends its money,” especially where “information concerning public employee salaries” may “illustrate claimed nepotism, favoritism, or financial mismanagement in state and local government,” and the “‘broadly based and widely accepted community norm’ applicable to government employee salary information is public disclosure.” Int’l Fed’n of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 331, 333-34 (2007); cf. Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation, 158 Cal. App. 4th 1075, 1086 (2008) (“The Legislature has made clear that the government’s business is the people’s business and that California’s citizens have a right to full disclosure of all information which affects the public fisc.”).

Potentially, exceptions may exist in particular cases; for example, “[i]f an officer’s anonymity is essential to his or her safety, the need to protect the officer would outweigh the public interest in disclosure and would justify withholding the officer’s name.” Local 21, 42 Cal. 4th at 337; see also Commission on Peace Officer Standards and Training v. Superior Court, 42 Cal. 4th 278, 284 (2007) (holding that records containing the names, employing departments, and hiring and termination dates of California police officers were generally subject to public disclosure, with limited exceptions for undercover officers).

Legal action

The CPRA does not provide for any formal remedy to seek access to public records other than litigation, although one is always welcome to engage in informal advocacy or negotiation with a public agency.

If one believes an agency has unlawfully withheld public records not covered by a specific exemption, the CPRA provides for legal action to enforce the right to inspect or copy public records. See Govt. Code §§ 7923.000, 7923.100. In such litigation, a person prevailing against an agency in a CPRA case is generally entitled to recover costs and attorney fees. Govt. Code § 7923.115(a). The “plaintiff may be a prevailing party even though the court did not enter judgment in his or her favor,” as long as “the lawsuit motivated the defendants to produce the documents” at issue. Sukumar v. City of San Diego, 14 Cal. App. 5th 451, 463 (2017).

As one court noted, “the trial court has discretion to deny attorney fees when the plaintiff obtains documents that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.” Riskin v. Downtown Los Angeles Property Owners Assn., 76 Cal. App. 5th 438, 441 (2002) (cleaned up).

An agency is not entitled to recover costs or attorney fees from a requester who brings suit unless the court finds the case is “clearly frivolous.” Govt. Code § 7923.115(b).

In litigation, an agency bears the burden of proof to justify withholding requested records. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 328 (2007).

When a court is “determining whether the CPRA applies, or whether an exemption has been established, the California Constitution instructs that a statutory provision ‘shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.’” Edais v. Superior Court, 87 Cal. App. 5th 530, 538 (2023) (quoting Cal. Const., Art. 1, § 3(b)(2)).

This “interpretive rule” requires that in case of any doubt, a court must interpret the law “in a way that maximizes the public’s access to information unless the Legislature has expressly provided to the contrary.” Sierra Club v. Superior Court, 57 Cal. 4th 157, 175 (2013) (cleaned up).