A. The Public Records Act contains or incorporates numerous exemptions.
1. The PRA itself contains many exemptions permitting public agencies to withhold certain categories of records. Most of these are set out in Government Code section 6254. Additional exemptions are included in separate sections.
2. The PRA also includes a provision exempting records the disclosure of which is exempted or prohibited under federal or other state law. Government Code section 6254(k) incorporates literally hundreds of specific statutory exemptions, most of which are listed at the end of the PRA (Government Code § 6275 et seq.), including, for example:
- Rap sheets (“criminal offender record information”).
- Medical records..
- Court records in unlawful detainer proceedings (sealed for 60 days, or indefinitely if the defendant prevails).
3. Note: the fact that a statute is included in the list does not mean that it necessarily creates an exemption. You need to look at the statute to determine if it actually prevents disclosure of public records.
B. Frequently invoked exemptions. The following are some of the most frequently exemptions:
1. Preliminary drafts or notes not normally retained, provided the public interest in withholding outweighs the public interest in disclosure (Government Code § 6254(a)).
2. Personnel, medical, and similar files (Government Code § 6254(c)). This exemption is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private, sensitive or controversial. But in fact, the information may only be withheld if its disclosure “would constitute an unwarranted invasion of personal privacy.” (Government Code § 6254(c)). That is, and is meant to be, a high threshold.
- Salary information: The California Supreme Court recently ruled that the salaries (and other cash compensation, such as bonuses and overtime pay) of specific, named public employees must be disclosed in response to a public records request. While the Court acknowledged public employees’ legitimate privacy interest in such information, it reasoned that it was outweighed by the public interest in how government spends the public’s money. International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319 (2007).
- Investigations of employee misconduct: The California courts have established a fairly liberal standard for disclosure of public records relating to complaints or investigations of misconduct by public employee or officials.
- They have held that there is a public policy against disclosure of “trivial or groundless charges,” but that “where the charges are found true, or discipline is imposed, the strong public policy against disclosure 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.’”
3. Records pertaining to pending litigation to which public agency is a party (Government Code § 6254(b)).
- To qualify, the records must have been prepared for use in the litigation.
- The PRA may be used to obtain documents generated in litigation in which the requestor was a party.
- The exemption terminates when the litigation is resolved.
- The exemption is broader than the attorney work-product exemption; it protects any work product generated by a public agency in anticipation of litigation.
- But note: records protected by the attorney-client privilege or attorney work-product doctrine remain exempt from disclosure (under section 6254(k) and the California Evidence Code) even after the litigation is resolved.
4. Law enforcement/licensing agency records of complaints, investigative, and security files (Government Code § 6254(f)).
This is a complex exemption. In general, law enforcement investigatory files are not required to be made public. The most typical example of such records are police reports. However, law enforcement agencies are required to make certain categories of information public, even though those categories of information are generally contained in law enforcement investigatory files.
The information required to be made public is discussed in more detail below. The exemption for law enforcement and licensing agency investigatory files arises “only when the prospect of enforcement proceedings becomes concrete and definite.”
5. Catch-all exemptions.
- Government Code § 6255. This provision exempts from disclosure any records if “on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”
- Deliberative process privilege. This exemption includes the “deliberative process privilege,” allowing nondisclosure of records revealing the deliberations of agency officials. This doctrine was created by the California Supreme Court in 1991, in a case involving a request for the calendars of then Governor Deukmejian, and has since been applied in many other contexts, including records of phone calls by city council members, and records regarding applications to the Government for appointment to fill vacancies on county boards of supervisors. According to the Supreme Court, “the key question in every case is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions.”
- Proposition 59. Proposition 59 may have eliminated the “deliberative process privilege.” It was certainly intended to do so. The Ballot Argument in favor of Proposition 59 states in part as follows: “What will Proposition 59 do? It will create a new civil right: a constitutional right to know what the government is doing, why it is doing it, and how. . . It will allow the public to see and understand the deliberative process through which decisions are made. The courts, however, have yet to rule definitively on this question.
C. Exemptions are not mandatory.
2. Thus, if an agency has disclosed the information sought, it may have waived right to claim exemption (Government Code § 6254.5).
31. See International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, 128 Cal. App. 4th 586 (2005), review granted, 32 Cal.Rptr. 3d 1 (July 27, 2005).
32. American Federation of State, County and Municipal Employees v. Regents of the University of California, 80 Cal. App. 3d 913, 918 (1978) (“AFSCME”). Accord, Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1044, 1046 (2004) (“Bakersfield”).
34. County of Los Angeles v. Superior Court (Axelrad), 82 Cal. App. 4th 819, 830 (2000).
35. City of Los Angeles v. Superior Court, 41 Cal. App. 4th 1083(1996).
36. Gov’t Code § 6254(b) (“ . . . until the pending litigation or claim has been finally adjudicated or otherwise settled.”).
37. Fairley v. Superior Court, 66 Cal.App.4th 1414, 1422, n. 5 (1998).
38. Williams v. Superior Court, 5 Cal. 4th 337, 356 (1993).
39. Id., at 361-62.
40. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991).
41. Gov’t Code § 6254 (“Nothing in this section prevents any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.”).