California Public Records Act Update - Legislative and Court Updates Impacting PRA in 2018

by Best Best & Krieger LLP
Contact

Best Best & Krieger LLP

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

  • SB 1421 Challenged in Courts, But Most California Public Agencies Must Still Produce Peace Officer Records
  • California Attorney General’s Office Clarifies its Information Bulletin Regarding Public Access to Police Records
  • Certain Police Personnel Records No Longer Confidential

 
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:

  • PRA Fee Award Narrowed to Cover the Issue of Scope of Redactions – Part I
  • An Appellate Court’s Observation May Have Effect on Reverse-PRA Actions – Part II
  • Private Attorney General Statute to Award Fees Used in a Reverse-PRA Dispute – Part III

 
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.
 
[View source.]

Written by:

Best Best & Krieger LLP
Contact
more
less

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.