What can be done if I believe a public school district has improperly withheld records that should be accessible under the CPRA?

Answer

General CPRA background

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.

The California Supreme Court has held that electronic “communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account.” City of San Jose v. Superior Court, 2 Cal. 5th 608, 625 (2017).

Duty to assist and search

The CPRA provides for both inspection and copying of public records. As to inspection, it states, “Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided…. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Govt. Code § 7922.525.

As to copies, the CPRA states, “Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Govt. Code § 7922.530(a).

“Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available.” Govt. Code § 7922.535(a).

In “unusual circumstances,” the time to respond may be extended by up to 14 days. Govt. Code § 7922.535(b). The term “unusual circumstances” means “the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.”

Govt. Code § 7922.535(c).

If an agency claims “unusual circumstances,” it must provide “written notice … setting forth the reasons for the extension and the date on which a determination is expected to be dispatched.” Govt. Code § 7922.535(b).

When a person makes “a request for a public record posted on the internet website,” the agency may respond by directing the requester “to the location on the internet website where the public record is posted,” but if “the member of the public requesting the public record requests a copy of the public record due to an inability to access or reproduce the public record from the internet website, the public agency shall promptly provide a copy of the public record pursuant to subdivision (a) of Section 7922.530.” Govt. Code § 7922.545.

As courts have said, the CPRA “is designed to give the public access to information in possession of public agencies. [The CPRA] itself does not undertake to prescribe what type of information a public agency may gather, nor to designate the type of records such an agency may keep, nor to provide a method of correcting such records. Its sole function is to provide for disclosure.” Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668 (1977). One court recently said, “the CPRA is not a records retention statute since the CPRA lacks any provisions pertaining to records retention. The CPRA is also silent with respect to any obligation on the part of a public agency to keep any particular records or to preserve records after a public records request has been made.” City of Gilroy v. Superior Court, 96 Cal. App. 5th 818, 836 (2023). The California Supreme Court has granted review of the Gilroy decision, but it remains in effect until or unless it is reversed, which has not happened yet.

No duty to create index

Agencies need not “generate new substantive content to respond to a PRA request.” National Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 502 (2020). Accordingly, “while the CPRA requires public agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.” Sander v. Superior Court, 26 Cal. App. 5th 651, 665 (2018); see also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 227 (2015); Regents of University of California v. Superior Court, 222 Cal. App. 4th 383, 400 (2013).

In general, when a person “requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

Govt. Code § 7922.600(a).

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, 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).

Reasonably segregable portions of records

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).

General background on CPRA personnel exemption

To the extent a 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).

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 a 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 government.” San Gabriel Tribune v. Superior Ct., 143 Cal. App. 3d 762, 777 (1983); see also, e.g., Iloh v. Regents of Univ. of Cal., 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 [minor,] 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.” Assoc. Chino Tchrs. v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 539 (2018) (cleaned up).

Personnel evaluations

Government Code section 7927.700 was modeled after the federal Freedom of Information Act’s (“FOIA”) Exemption 6. Versaci v. Superior Ct., 127 Cal. App. 4th 805, 819 (2005). The court in Versaci reasoned, “‘Personal preferences and goals,’ as well as evaluations, are ‘similar’ files within the meaning of [FOIA’s Exemption 6]” because “they reflect highly personal details about … employees.” Versaci, 127 Cal. App. 4th at 819.

Accordingly, the court held such documents were not subject to disclosure under Government Code section 6254(c), which is identical to current section 7927.000. (The CPRA was renumbered as of January 1, 2023, but the changes do not affect the substance of the law.) On the facts of the case, the court held a community college superintendent’s “privacy interest in her entire evaluation process including her personal performance goals outweighs the public’s minimal interest in the matter.” Versaci, 127 Cal. App. 4th at 822.

The court’s holding was based in part on its conclusion that the evaluation and performance goals were not part of the superintendent’s employment contract, which would otherwise be subject to public disclosure. See Versaci, 127 Cal. App. 4th at 814-17; Govt. Code § 7928.400.

The court also noted, “the Board adopted numerous documents under which the District is run, including a ‘Strategic Plan,’ ‘Annual Implementation Plans’ and ‘Board Goals, and the documents are available to the public. Further, as the District’s Superintendent, Dr. Amador was ‘fully accountable to the Board and to the public for achieving the goals set forth in those documents. Without resorting to her personnel file, a substantial amount of information is available to assist the public in assessing the trustees’ conduct vis-à-vis Dr. Amador.” Versaci, 127 Cal. App. 4th at 821.

Misconduct complaints

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.” Am. Fed’n of State Etc. Emps. v. Regents of Univ. of Cal., 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 Sch. Dist. v. Superior Ct., 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 Sch. Dist., 118 Cal. App. 4th at 1046 (upholding disclosure of records about an incident involving a district employee where a trial court found a complaint of sexual misconduct and threats of violence were substantial and there was reasonable cause to believe it was well founded, although 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 Sch. 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 Univ. of Cal., 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 Ct., 143 Cal. App. 4th 742, 759 (2006).

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).