California Public Records Act (“CPRA”) v. Freedom of Information Act (“FOIA”)

Education Code - Ed. Code § 49060

Family Educational Rights and Privacy Act (“FERPA”) - Pub. L. 103-382, 34 C.F.R. 99

Subpoenas – Criminal and Civil

CPRA applies to local agencies. Local agencies include boards, commissions, advisory bodies

FOIA applies to federal agencies only◦ Duty to construe FOIA requests as CPRA

requests

Government Code sections 6250-6276.48:

◦“..access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state…”

What is a “writing”?◦ Any document prepared, owned, used, retained

by local agency in any form◦ Emails/Computer◦ Videos◦ DVDs/CDs◦ Photographs

What is not a “writing”?◦ Not required to create something that doesn’t

exist

Preliminary drafts, notes not retained in ordinary course where public interest in nondisclosure outweighs

Pending litigation Personnel, medical or similar files Arrest records, investigations

Library circulation records Privileged documentation Social services records Medical insurance program records Exam materials Taxpayer information

Attorney-Client Privilege or Work Product Closed Session Materials Deliberative Process Privilege Trade Secrets Settlement Discussions Patient-Doctor/Psychotherapist Constitutional or Statutory Privacy

California and U.S. Constitutional Right to Privacy - duty to invoke for third parties

Confidentiality of Medical Information Act Criminal History Summaries - DOJ Consumer Credit Reporting Act -

Background Investigations Other Specific Statutes: ex., Ed Code

§ 49558 - applications for free/reduced meals

Assist public in formulating request for record

Provide suggestions to overcome objection to nondisclosure

Accept oral requests for records, or assist individual to prepare the request in writing

Public records are to be open for inspection during normal business hours

Staff need not disrupt operations to allow immediate access, but must make prompt decision as to whether to grant immediate access

No ability to limit the hours records may be inspected

Request for public records made Agency written response within 10 days as to

whether record will be produced.◦ Is the request for a public record?◦ Any exemption, privilege or other basis apply?◦ Does the record exist?

Letter confirming request and agency’s response If unable to decide within 10 days, send a letter to

extend the written response time by 14 days; letter must provide a valid reason for the extension

Do NOT withhold records without Board approval!

Confirm the date the CPRA request was actually received

Memorialize each item requested and its response◦ The District received your request for personnel

records of Jane Doe dated January 1, 2002. Your request is denied. Any documents that may exist responsive to this request are exempt. (See Gov. Code, § 6254.)

Advise re estimated costs per policy Get “deposit” in advance

◦ We have received your request for all Board agendas prepared in 2008, 2009, and 2010. We estimate that your request seeks 5,000 pages. Pursuant to District policy, the District charges $.10 per page for public record requests. Accordingly, please deposit $500.00.

Within “reasonable time” of written response. ◦ No undue delay.

Agency cannot delay or obstruct copying of public records.

Direct cost of copying only ◦ Personnel time not included

Statutory Fees

Cost of programming and computer services necessary to produce a record not otherwise readily available?

Injunctive/Declaratory Relief

Writ of Mandate

Court Costs and Attorney Fees

Educational Records◦ Ed. Code § 49069 - 5 days

◦ Permissive, Mandatory, Non-records

◦ Legal Custody

Subpoenas – Criminal/Civil

Labor Code – Personnel File

Union Requests for Information

Civil and Criminal Code of Civil Procedure sections 1985.3,

1985.4 and 1985.6 require “CONSUMER NOTICE”

Timelines for serving pursuant to Code of Civil Procedure

Analyze the request under the CPRA and find the field of available documents

Look at any exemptions which may prevent disclosure of a document

Analyze the request under the Education Code, Code of Civil Procedure, then the Labor Code

Scott Huber, Partner2261 Lava Ridge CourtRoseville, CA  95661916-780-9009 - Main phone916-787-7511 - Direct dial916-780-9050 - FaxEmail: shuber@cotalawfirm.comWebsite: http://www.cotalawfirm.com/