Authored Articles & Publications Sep 10, 2019

CPRA: The Only Constant is Change

ARC’s Christine Wood Discusses Calif. Public Records Act Updates in Riverside Lawyer Magazine

CPRA: The Only Constant is Change

By Christine Wood

A public agency’s release of public records is a hot button issue for policy wonks, community advocates and conspiracy theorists alike. In recent years throughout California, the process of gathering and releasing public records has become much more complex — thanks to legislative and judicial changes. For those practicing law for or against public agencies, the only constant now is change.
 
California Public Records Act
Adopted in 1968, the California Public Records Act is one of California’s sunshine laws. It was enacted to hold agencies accountable by allowing the public to inspect and copy records in the agency’s care.
 
The CPRA states that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The CPRA’s purpose is to create maximum disclosure of the government’s conduct. The California Legislature felt that records disclosure was necessary to help keep the government accountable to the people. The right was later enshrined in the state constitution. The people’s right to disclosure under the CPRA is broad. When the government resists disclosure and is challenged for it, the courts err on the side of records release to the public.
 
Writings held by a public agency are public records, and writings is broadly defined to include any recording of a communication “regardless of the manner in which the record has been stored.” Inherent in the CPRA is the tension between the public’s right to records and basic privacy rights. The volume of personal information in public agencies’ possessions — including libraries, water districts, cities, sanitation districts, police departments and fire districts, for example — is unfathomable. The California Legislature recognized this tension by inserting a number of exemptions in the Act, including a “catch-all exemption” that can be invoked if no other exemption applies, but the agency must demonstrate that the public interest served by not making the record public clearly outweighs the public interest served by the record’s disclosure. This is an incredibly high showing for the agency — but courts may sustain this exemption if there is a clear effort to protect confidentiality.
 
Since the CPRA was first adopted more than 40 years ago, there has been a significant effort to modernize the Act to reflect the technological trends that make it easier for public agencies to govern: email, enterprise systems and body and dash cameras, to name a few. Following are some of the ways the CPRA has changed (or is changing) to accommodate these trends.
 
Email
In March 2017, the California Supreme Court held that public records on public employees’ and elected officials’ personal devices and email accounts  are subject to disclosure. This means that public employees and elected officials must now disclose emails in their personal accounts (and text messages on their cell phones) if the communication substantively relates to the conduct of the public’s business.
 
The Legislature is considering whether to require public agencies to retain all email for a minimum of 2 years. Most public agencies already have an obligation to retain any record for a minimum of 2 years.  Assembly Bill 1184 will require public agencies to keep any and every email, even those extraneous to the conduct of the public’s business. Watch this bill closely, as it could be a significant change in the law and create an increased retention burden for public agencies.
 
Enterprise Systems
In 2015, the California Legislature enacted Senate Bill 272, which requires each public agency, with the exception of school districts, to post to its website a catalog of enterprise systems. The catalog is meant to help the public more easily access public data that might be maintained electronically in large-scale software packages and no longer in paper form. While this may have been a small burden to public agencies, these types of disclosures — if not done correctly and within the protections afforded in the law — could leave public agencies vulnerable to cyberattacks.
 
Law Enforcement Records
In January, the California Legislature enacted SB 1421, which gives the public access to police personnel records under four circumstances:

  • discharge of a firearm by an officer,
  • use of force that results in death or great bodily injury,
  • sustained findings of an officer’s job-related dishonesty and
  • sustained findings of an officer’s sexual assault against a member of the public.

 
In companion legislation, AB 748, the Legislature required law enforcement agencies to disclose police audio and video records within 45 days of a critical incident. Together, these two pieces of legislation reversed well-established laws and practices in exchange for more law enforcement transparency. While the latter is important, it comes with a significant cost to law enforcement agencies.
 
For example, the California Supreme Court is determining whether agencies can recover the cost of redacting body and dash camera footage. In National Lawyers Guild v. City of Hayward, an appellate court decided the City was entitled to recover the cost of compiling, reviewing and redacting exempt portions of body and dash camera footage – a decision that could have proven beneficial to police departments in lessening the financial burden placed on them by the enactment of SB 1421 and AB 748. National Lawyers Guild is a much anticipated decision because it will have far-reaching implications for law enforcement agencies.

Inevitably, public agencies have to become more savvy in handling the retention, collection, storage and production of electronic public records. It may not be easy, but it is definitely necessary now that both the Legislature and the courts are updating the CPRA’s provisions to align with today’s technology.

This article originally appeared in the September 2019 edition of Riverside Lawyer magazine, a publication of the Riverside County Bar Association. Reprinted with permission.

Continue Reading