Question
Is it legal for a government attorney to mark a PRA response as being “Confidential”? Confidential is followed by “Note: This media is intended to be viewed by certain individuals. It may contain information that is privileged or protected from disclosure by law. If you are not the intended recipient, any action in reliance on the content of this media is strictly prohibited…”
These financial records have been kept secret from the board and contain significant financial improprieties.
Is this legal?
I have a second question: A PRA request was made requesting copies of past checks written on a Manual Disbursement (petty cash) account at the government agency’s bank. Each check had three lines for signatures.
The issue is whether the General Manager secretly (without the knowledge or authorization of the Board) sent at least $300,000 to the Manager’s Supplemental Retirement Account. Thus the signature(s) on the checks might be considered evidence.
The agency’s attorney redacted all signatures on at least 40 checks for the same four-figure amount written to the same bank and cashed by the bank, assuming annual auditor’s reports are correct.
The question: Is it legal for a government agency’s attorney to redact signatures from checks produced by a PRA request?
Answer
Generally speaking, the California’s Public Records Act does not permit agencies to place conditions on how public records disclosed pursuant to the PRA may be used. In fact, disclosure by an agency of a particular record may waive the agency’s ability to withhold that record from others even if it might otherwise have been exempt from disclosure. Gov’t Code § 6254.5.
Moreover, “[t]he purpose of the requesting party in seeking disclosure cannot be considered. … because once a public record is disclosed to the requesting party, it must be made available for inspection by the public in general.” City of San Jose v. Superior Court, 74 Cal. App. 4th 1008, 1018 (1999); see also Black Panther Party v. Kehoe, 42 Cal. App. 3d 645, 656–57 (1974) (“By force of these provisions, records are completely public or completely confidential. The Public Records Act denies public officials any power to pick and choose the recipients of disclosure.”
Note however, that California courts have recently limited the scope of this restriction when disclosure by the agency was inadvertent. See Newark Unified Sch. Dist. v. Superior Court, 239 Cal. App. 4th 33, 894, 190 Cal. Rptr. 3d 721, 724 (2015), publication ordered sub nom. Newark Unified Sch. Dist. v. S.C., 366 P.3d 1005 (Cal. 2016), and dismissed, remanded and ordered published sub nom. Newark Unified Sch. Dist. v. S.C., 369 P.3d 552 (Cal. 2016).
It is possible that a third party claiming rights in materials disclosed by an agency pursuant to the PRA could try to assert its interests against the person to whom the materials were released, but such a claim by a third party would typically be highly problematic.
Additional information about the PRA is available on the First Amendment Coalition web site at https://
You bring up an interesting question on whether the government can redact signatures on checks produced in a PRA request. Under Govt. Code 6253(a), an agency can redact material that is exempt from disclosure. However, I was unable to find any specific PRA exemption for signatures and I have not come across any case law that addresses this specific topic.
Generally, information is redacted if it is not disclosable (i.e., is exempt from disclosure). The PRA does not bar an agency from redacting information that is non-responsive (i.e., outside the scope of what was requested), but the agency must provide more information than a simple conclusion that it was “nonresponsive.” American Civil Liberties Union of Northern Cal. v. Superior Court, 202 Cal. App. 4th 55, 82 (2011). You might want to ask the agency for additional clarification as to why the signatures were redacted and if there is a specific exemption that the agency is claiming.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.