Legal Alerts Feb 4, 2019

California Public Records Act Update

Legislative and Court Updates Impacting PRA in 2018

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While an almost exhaustive amount of information can be sought via a Public Records Act request, the right to inspect public records is not without limits. The PRA does not give automatic access to information exempt from disclosure. Occasionally, the public’s right of access must yield to exemptions, such as individual privacy rights and defined privileges. However, transparency remains the goal.
 
Last year, the California Legislature and courts gave further guidance in balancing the rights of the public with those of the individual, aiming to facilitate transparency when appropriate.
 
Law Enforcement Records - SB 1421
Senate Bill 1421 amends Penal Code section 832.7 and gives the public access to police personnel records related to reports, investigations and findings via the PRA in three categories: job-related dishonesty, sexual assault against a member of the public and specified use-of-force incidents. This includes public access to reports, investigations and findings stemming from incidents involving either the discharge of a firearm at a person by an officer or a use of force by an officer against a person that results in death or great bodily harm.
 
However, there are limitations. An agency can redact the officers’ personal information and release only the officers’ names and work-related information. An agency can also redact “to preserve anonymity of complainants and witnesses,” to protect confidential information, which is prohibited by law or would cause “unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct” by officers, such as medical and financial information or where “there is a specific, articulable and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the officer or another person.” The safety of the individuals involved in the incident are of the utmost importance.
 
SB 1421 also gives scenarios where a law enforcement agency can withhold disclosable information. These scenarios include during the course of an investigation surrounding the use of force until a determination is made as to whether the use of force violated law or policy or until prosecutors file criminal charges for the use of force. Please note, SB 1421 allows for the release of information for use-of-force incidents prior to sustained findings, if none of the aforementioned withholding scenarios apply. The release of information related to job-related dishonesty and sexual assault is contingent on a sustained finding, which means “it was determined through an internal or criminal investigation that the incident not only occurred, but that the officer was found to have violated department policy or statute,” according to the League of California Cities’ “Legislative Report: A Compilation of 2018 Statutes.”
 
For additional information on SB 1421, read our previous Legal Alerts

 
Law Enforcement Body Camera Footage & Audio Recordings - AB 748
New technology used by on-duty officers could give new insight to the trials — dangerous or benign — faced by officers in the field. AB 748 is added to the PRA directly and “seeks to create a standard for the release of body-worn camera footage captured by law enforcement by balancing privacy interest with the public’s interest in the footage.”
 
AB 748, which takes effect July 1, authorizes the police department to withhold audio and/or video recordings related to a critical incident for an initial 45-day period if disclosure would “substantially interfere” with an active investigation. The department will have to provide a written explanation, giving a specific basis on the facts of the particular case, for its determination to withhold the recordings. Upon disclosure of the body-worn camera footage, the department may use redaction technology to blur or distort images and audio to protect privacy interests.
 
For additional information, read our previous Legal Alert AB 748: More Public Access to Body Camera Footage Under PRA and see National Lawyers Guild v. City of Hayward below.
 
Drivers’ Personal Information - SB 244
SB 244 prohibits state and local agencies from disclosing personal information collected from driver’s license applications, local identification card programs and public health services absent consent, court order or exigent circumstances. The information collected by an agency must only be used to further its purpose. For example, the information collected by the Department of Motor Vehicles must be necessary to administer a driver’s license, while information collected by a public health agency must be necessary to administer health care. In both scenarios, however, an individual must provide a social security or taxpayer identification number, among other private, personal information, which — at best — is indirectly related to the administration of the agency’s purpose.
 
Since all California state and local agencies are subject to the PRA, anyone may examine the collected records upon request. After an individual fills out and submits a driver’s license application, she or he relinquishes control as to how the information contained within is disseminated. There are currently exemptions designed to protect private information, but none specifically addressing agencies designed to handle identification cards and public health service. SB 244 aims to strike a delicate balance between a government agency’s need to collect information in an effort to administer public programs and an individual’s need to protect disclosure of private information.
 
Note, SB 244 amends Vehicle Code sections 12800.7 and 12801.9 and adds section 17852 to the Welfare and Institutions Code.
 
Deliberative Process Privilege - Labor & Workforce Development Agency v. Superior Court
The Legislature is vested with the power to create, amend and repeal law. In doing so, there is constant debate and deliberation among legislators, as well as the committees, and subcommittees that support the Legislature. While the statutes and policies formed through the legislative process will be publicized, documents and communication made prior to the decision are not pursuant to the deliberative process privilege.
 
In Labor & Workforce Development Agency v. Superior Court, the issue was whether the disclosure of documents and communications relating to the decision to enact a new bill was limited due to the deliberative process privilege. The Third District Court of Appeal concluded the disclosure of pre-decisional communications would discourage candid decision-making, for fear of rejected thoughts and ideas “becom[ing] subjects of public discussion.” The court held documents and communications, even if purely factual “are exempt from public scrutiny if it is ‘actually related to the process by which policies are formulated’ or inextricably intertwined with policy-making process.” Decision-making is the primary function of the Legislature; the disclosure of the pre-decisional communications would undermine the ability to perform its function, the court found.
 
Recoverable Costs - National Lawyers Guild v. City of Hayward
The PRA makes the public records process nearly cost-free to requesters. In most scenarios, requesters are only responsible for the direct cost associated with producing duplicate copies of the records in physical or electronic form. However, requesters may incur high cost when the electronic records sought require data compilation, extraction or programing to produce.
 
In National Lawyers Guild v. City of Hayward, the Guild sent a PRA request to the City, which produced responsive records, along with an invoice for almost $3,000. The City “spent approximately 170 hours identifying, compiling, reviewing and redacting exempt portions from these videos,” which required specialized software to produce. The Guild brought action to recover the invoice cost. Based on the law, which states that “an agency [can] recover specified ancillary costs… when compliance with the request for an electronic records would require data compilation, extraction or programing to produce the record,” the court held the City was entitled to the invoiced fee under the extraction provision in the PRA.
 
The holding in National Lawyers Guild may prove beneficial to police departments in lessening the financial burden placed on them by the enactment of AB 748. The departments, similar to the City of Hayward, will spend significant time “compiling, reviewing and redacting exempt portions” of the body camera footage. The decision in National Lawyer Guild, paired with Government Code section 6253.9, suggests an agency can recover cost when the request for compensation is made in advance. This case has been appealed and has been granted review by the California Supreme Court.
 
Recovery by Agencies in Frivolous PRA Actions - SB 1244
SB 1244 replaces “plaintiff” with “requester” to clarify “the court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail” in a PRA action. So, the PRA allows for the recovery of attorney's fees to a plaintiff only when the plaintiff is a requester of public records. It is important to note, when a requester is sued by an agency and losses the suit, the requester does not have to pay the agency’s attorney's fees. SB 1244 clarifies that the court is to award court costs and reasonable fees to the public agency if the courts find the requester’s case to be frivolous.
 
Attorneys’ Fees in Reverse PRA Actions - Pasadena Police Officers Association v. City of Pasadena
Reverse PRA actions, which do not derive from statutes, allow a party to seek judicial restraint of the disclosure of public records. A public agency may notify parties who have a privacy interest in the records of its decision to disclose public records. The parties may then be given time to seek judicial review. In essence, a reverse PRA action is just legal action taken in opposition to an agency’s decision to disclose records pursuant to the PRA. Since reverse PRA actions are a creation of the judiciary, there has been little jurisprudence on the award of attorneys’ fees in these matters.
 
In Pasadena Police Officers Association v. City of Pasadena, the Second District Court of Appeal reiterated that the PRA allows requesters to recover any fees incurred while enforcing their constitutional right to public records from a public agency. The court reasoned the requester could not recover attorney's fees under the PRA because the third parties, who raised the PRA action, were only attempting “to protect the officers’ personal privacy rights and not an important right affecting the public interest,” as mandated by the Private Attorney General Act. However, requesters also sought the recovery of attorney's fees under PAGA, which would allow the requester to recover directly from the third parties. The court awarded the attorney's fees under PAGA, reasoning the third parties should be held personally liable for attempting “to restrict the public’s right of access to police records.”
 
Read more in our three-part Legal Alert series on PPOA v. City of Pasadena:

 
Record Creation - Sander v. State Bar of California
Last year, California courts gave a definitive “no” to the creation of new records to fulfill PRA requests. There is no provision in the PRA obligating an agency “to create or obtain particular records when the document is not prepared, owned, used or retained by the public agency.” In Sander et. al. v. State Bar of California, Sander sought to make applicant demographic records from the State Bar of California accessible to the public. The information Sander sought included the number of times the applicant took the exam, law school information, test score and demographic and other information.
 
Sander argued the records could be made available to the public if certain steps were taken on the State Bar’s part to protect the privacy and anonymity of applicants. Sander provided expert witnesses to explain data anonymization and re-identification protocols, which would require substantial manipulation of data by the State Bar. The First District Court of Appeal found that the extent of the manipulation required to maintain privacy would force the State Bar to create new records and, therefore, was beyond the scope of the PRA.

Read more in our previous Legal Alert Public Agencies Do Not Have to Create Records for PRA Requesters.
 
If you have any questions about these developments and how they may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Public Records Act practice, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

BB&K is helping public agencies navigate Public Records Act compliance with our new Advanced Records Center. Combining legal know-how with cutting-edge technology, ARC provides comprehensive and cost-effective support for all records-related matters, including PRA requests. To learn more, visit the ARC page or email ARC@bbklaw.com

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