Can my former employer disclose my personnel records under the CPRA?

Answer

CPRA: general overview

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).

However, in advance of litigation to enforce the CPRA, an agency is generally under no duty to produce an itemized list of records it is withholding in whole or in part or to provide additional information as to why it is claiming particular exemptions. Haynie v. Superior Court, 26 Cal. 4th 1061, 1073–75 (2001).

The CPRA states that any “reasonably segregable portion of a record” that is subject to disclosure must be provided “after deletion of the portions that are exempted by law.” Govt. Code § 7922.525(b). Accordingly, the CPRA generally “requires public agencies to use the equivalent of a surgical scalpel to separate those portions of a record subject to disclosure from privileged portions” as long as the exempt portions are “reasonably segregable.” Los Angeles County Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 292 (2016).

Catchall exemption, Govt. Code § 7922.000

The CPRA has a catchall exemption that allows an agency to withhold records if it can prove “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. This “provision contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1043 (2017).

As one court has noted, the catchall exemption “cannot logically be applied” based on the contents of records if “the Legislature has created a specific exemption” for the records at issue or “categorical exemptions” for “classes of documents related to those in issue.” City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1421 (1995).

Another court has explained why the catchall exemption must generally be narrowly applied:

We remain mindful that openness in the activities of government is fundamental to the exercise of our constitutional rights and our ability to function as a democracy. Courts must be alert to contentions by government entities that exaggerate the interest in nondisclosure, lest they be used as a pretext for keeping information secret for improper reasons, such as to avoid embarrassment over mistakes, incompetence, or wrongdoing. After all, to some extent any request for disclosure of public records will place a burden on government. Both the voters and their elected officials have established the general policy that this burden is well worth bearing in order to keep democracy vital. If the catchall provision of the CPRA becomes a loophole used to improperly keep public records from the people, the important purposes of the CPRA would be undermined.

Los Angeles Unified School Dist. v. Superior Court, 228 Cal. App. 4th 222, 250 (2014).

However, that court upheld a school district’s decision to withhold the names of teachers from reports on how their students performed on standardized tests.

The California Supreme Court has confirmed there is a “strong public interest in knowing how the government spends its money” and noted that access to certain public records, such as salary information, is necessary “to expose corruption, incompetence, inefficiency, prejudice, and favoritism.” International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 333 (2007).

In some circumstances, agencies assert the catchall exemption on the ground that it protects records reflecting their “deliberative process.” See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338 (1991). A claim of deliberative process must generally establish that “the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions” on the particular facts of each case. Times Mirror, 53 Cal. 3d at 1342; see also American Civil Liberties Union of Northern California v. Superior Court, 202 Cal. App. 4th 55, 75 (2011) (“ACLU”) (deliberative process protects “mental processes by which a given decision was reached” and “the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated”).

In some circumstances, “the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.” Times Mirror, 53 Cal. 3d at 1345–46. Thus, in general, “[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.” Citizens for Open Government v. City of Lodi, 205 Cal. App. 4th 296, 306 (2012).

A request can “override the deliberative process privilege” where “the public interest in disclosure [is] sufficiently compelling when measured against the minimal impact on government decisionmaking.” State v. Superior Ct., 101 Cal. App. 5th 214, 220 (2024).

If challenged in litigation, an agency must generally do more than merely recite “a policy statement about why the privilege in general is necessary…. While the policy behind the privilege makes sense, invoking the policy is not sufficient to explain the public’s specific interest in nondisclosure of the documents,” because the “policy could apply to almost any decisionmaking process.” Citizens for Open Government, 205 Cal. App. 4th at 307 (holding agency “failed to carry its burden” with boilerplate); see also Golden Door Properties LLC v. Superior Court, 53 Cal. App. 5th 733, 791-92 (2020) (rejecting claim of deliberative process where agency’s “declaration makes broad conclusory claims” that “merely echo public policies underlying claims of privilege generally” and contains “no specific explanation of the role played by any of the 1,900 documents in the deliberative process, or why disclosure would be harmful—other than these generalities”); Caldecott v. Superior Court, 243 Cal. App. 4th 212, 225–26 (2015) (rejecting “conclusory statement” that document “contains the substance of or excerpts from actual discussions or debate, or information showing how government policy was formed,” or “will interfere with discussions or debate”).

Personnel records, Govt. Code § 7927.700

To the extent a CPRA request seeks records related to employee personnel matters, generally the CPRA contains an exemption for “personnel, medical, or similar files, the disclosure of which 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). In making a CPRA request, a former public employee may stand on the same footing as any member of the public.

In general, with respect to misconduct complaints against ordinary employees other than peace officers, courts have noted that “where the charges are found true, or discipline is imposed, the strong public policy against disclosure” of private matters “vanishes; this is true even where the sanction is a private reproval. In such cases a member of the public is entitled to information about the complaint, the discipline, and the information upon which it was based.” American Federation of State Etc. Employees v. Regents of University of California, 80 Cal. App. 3d 913, 918 (1978) (cleaned up).

Where charges are not found true but “complaints of a public employee’s wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well founded, public employee privacy must give way to the public’s right to know.” Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004). Accordingly, the case law does not generally require that “a finding of the truth of the complaint contained in the personnel records or the imposition of employee discipline is a prerequisite to disclosure.” Bakersfield City School Dist., 118 Cal. App. 4th at 1046 (upholding disclosure of records about an incident involving a district employee where the trial court found a complaint of sexual misconduct and threats of violence was substantial and there was reasonable cause to believe it was well founded, although the court did not decide if it was true).

As one court said, “not every claim of misconduct is substantial or well founded, and thus not every complaint need be disclosed because of the potential impact of an unjustified accusation on the reputation of an innocent public employee.” Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4th 1250, 1274 (2012). However, even without a finding that a complaint is true, “if the information in the agency’s files is reliable and, based on that information, the court can determine the complaint is well founded and substantial, it must be disclosed.” Marken, 202 Cal. App. 4th at 1275 (upholding disclosure of records related to reprimand of teacher for violating district’s sexual harassment policy); see also Iloh v. Regents of University of California, 87 Cal. App. 5th 513, 526 (2023) (noting “[t]here is a strong public interest in knowing how a public university funded largely by taxpayer dollars handles and resolves quality or integrity problems in its professors’ publications” and ordering disclosure of post-publication communications regarding articles withdrawn from journals due to concerns about plagiarism).

With respect to high-ranking public employees, such as a school district superintendent, courts generally apply “a lesser standard of reliability,” requiring disclosure of allegations and related investigations unless “the allegations were so unreliable the accusations could not be anything but false,” because the public has a compelling interest in understanding how the agency conducted its investigation and whether it improperly exonerated a high official or made a “sweetheart deal” with the official. BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 759 (2006).

Official information privilege and attorney-client privilege, Govt. Code § 7927.705

Govt. Code § 7927.705 provides that the CPRA “does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” In essence, it incorporates other laws protecting information. The response you received addresses a couple of examples, but without more information, it’s not clear what privilege the agency is asserting.

For example, Evidence Code sections 1040 and 1041 codify an “official information privilege” in California. “Official information” means “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” Evid. Code § 1040(a). Absent a law specifically prohibiting disclosure, a public entity may withhold such information if “[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” Evid. Code § 1040(b)(2).

For purposes of public disclosure under the CPRA, the weighing process provided by Evid. Code § 1040 parallels the catchall exemption of the CPRA. CBS, Inc. v. Block, 42 Cal. 3d 646, 656 (1986). Under the catchall exemption, an agency may justify withholding a public record “by demonstrating … 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. That is a fact-intensive question which cannot be addressed without more information. However, it may be irrelevant to the extent the records you seek are otherwise exempt from disclosure under specific statutes.

The attorney-client privilege can support an exemption from disclosure regardless of whether the records relate to pending or potential litigation. Roberts v. City of Palmdale, 5 Cal. 4th 363, 370 (1993).

As the California Supreme Court has explained:

The attorney-client privilege applies to communications in the course of professional employment that are intended to be confidential. Under the Evidence Code, a client holds a privilege to prevent the disclosure of confidential communications between client and lawyer. “Confidential communication” is defined as including “a legal opinion formed and the advice given by the lawyer in the course of that [attorney-client] relationship.” … [T]he attorney-client privilege applies to confidential communications within the scope of the attorney-client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.

Roberts, 5 Cal. 4th 363 at 371 (citations omitted).

The attorney-client privilege only covers “a confidential communication between client and lawyer.” Evid. Code § 954. The term “confidential communication between client and lawyer” means

information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

Evid. Code § 952.

The Court of Appeal has held that the privilege can attach to an attorney’s investigation of alleged misconduct. City of Petaluma v. Superior Court, 248 Cal. App. 4th 1023, 1035 (2016) (holding privilege attached to report of outside counsel who “was retained to use her legal expertise to conduct a factual investigation that would, in turn, be the basis for the City Attorney to provide legal advice to the city” about harassment and retaliation claim even though outside counsel herself did not provide legal advice).

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. Int’l Fed’n 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).