Personal privacy exemption for public college dean

Answer

The university has cited two separate reasons for withholding the records that you seek, each of which deserves some explanation.

With respect to Gov’t Code § 6254(c), this particular exemption is known as the “personnel exemption,” and is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial.

However, this exemption — which was developed 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) — applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6245(c) (emphasis added). Unfortunately I could not find any case that specifically addresses whether revelation of phone numbers that a public employees call from an agency-provided phone would qualify for this particular exemption.

If a court were to consider this question, the burden would be on the university to demonstrate that the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. Braun v. City of Taft, 154 Cal. App. 3d 332, 345 (1984) (standard for weighing whether nondisclosure is proper under § 6254(c) is almost the same as the standard contained in the Public Record Act’s catch-all exemption).

It seems that in the situation you describe, the public has a strong interest in knowing how the dean is using university funds, and the only way to determine how much she is using the phone for personal purposes is to look at which numbers she has dialed and make an inquiry (either to the administrator herself, or by using other publicly available resources) into who is on the other end of those phone numbers. Although some of the phone numbers may belong to friends, family, or dog kennel boarding houses, as opposed to individuals with whom she conducts official university business, it does not seem that this amounts to the type of invasion of personal privacy that would warrant the withholding of those phone numbers.

As to the second justification, Civil Code §1798.42 is part of the Information Practices Act of 1977, a scheme that governs agencies in their collection and maintenance of personal information related to individuals. The statute cited states,

“In disclosing information contained in a record to an individual, an agency shall not disclose any personal information relating to another individual which may be contained in the record. To comply with this section, an agency shall, in disclosing information, delete from disclosure such information as may be necessary.” Cal Civ Code § 1798.42. “Record” is defined as “any file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular such as the individual’s name, photograph, finger or voice print, or a number or symbol assigned to the individual.” Civil Code § 1798.1(g).

The definition of “record” under the IPA may not necessarily encompass the type of “record” you seek under the Public Records Act, since the phone records are probably not a “file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular.”

Nonetheless, the agency may have identified an issue related to its duty to maintain the privacy of those whom the dean called. As such, if, on your end, there is room for negotiation with the university with respect to these records, you might suggest that the university redact only the four-digit exchange portion of each phone number, so that you can at least see what area codes and prefixes the dean called. This may help you determine the extent to which the dean made non-university-related-business calls while overseas, or at the very least, give you a starting point to inquire into whether the numbers called were for personal or business purposes.

You might want to write back to the university and ask that it fully explain how revelation of the phone numbers would lead to an “unwarranted invasion of personal privacy” under § 6254(c). If revealing these phone numbers would merely cause embarrassment to the university and the dean in question, this is not sufficient justification for withholding those records. You may also want to point out that the Civil Code section cited does not seem to apply to the records that you seek, but then offer of meet the university halfway on this issue, as indicated above.

At any rate, in future communication with the university, you might want to mention that should it continue to maintain that the records are exempt from disclosure, and you decide to file a writ of petition in the Superior Court to compel disclosure of the records, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. Gov’t Code § 6259(d).

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