California public entities are subject to the California Public Records Act (“CPRA”) found in California Government Code §6250 et seq. Under this Act, members of the public can request that the public entity turn over documents within its possession, even those that may give rise to litigation against the public entity. There are protections and exemptions available to public entities to limit, and in many cases prohibit, such document productions to the public. This article briefly summarizes those protections and gives California public entities a starting point and general concept of how to seek out such protections to avoid unnecessary production of documents in response to public records requests.

OVERVIEW OF THE CALIFORNIA PUBLIC RECORDS ACT

The CPRA is found in the Government Code, starting in §6250, and allows for “every person in the state” to request records, which contain “information relating to the conduct of the public’s business,” which are “prepared, owned, used or retained by any state or local agency regardless of physical form or characteristic.” (Government Code §6252(d); McMichaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1071.) The CPRA allows any person within the State of California to make a request to essentially every level of state and local government, and any office associated therewith, for any records which are stored or used by the public entity (Government Code §6252(b)-(d)). The CPRA was modeled after the Federal Freedom of Information Act (“FOIA”) found in 5 U.S.C. §552, and California courts have determined that the two acts are so similar that federal cases interpreting FOIA can be used to interpret CPRA requests as well. (Times Mirror Company v. Superior Court (1991) 53 Cal.3d 1325, 1347; American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 447.)

In practice, the policy of the CPRA, and the courts who interpret the CPRA, is to favor allowing for disclosures, and the purpose for which the records are being requested by a member of the public is irrelevant. (State Board of Equalization v. Superior Court (Associated Sales Tax Consultants, Inc.) (1992) 10 Cal.App.4th 1177, 1190-1191; Wilder v. Superior Court (Metropolitan Transit Authority) (1998) 66 Cal.App.4th 77, 83.) The requesting party need only make a request for documents that is clearly enough stated to permit the public agency to determine whether the documents exist, and even if the requesting party only describes the documents by their content (without describing the specific nature of the documents), the public agency must perform a search and attempt to find documents to produce to this member of the public. (Government Code §6257; California First Amendment Coalition v. Superior Court (Wilson) (1998) 67 Cal.App.4th 159, 166.) The public entity then must determine, within ten days after receiving a CPRA request, whether there are documents to be produced, whether protections and privileges exist, and respond to the request. (Government Code §6253(c).)

RESPONDING TO THE CPRA REQUEST: ASSERTING PROTECTIONS, PRIVILEGES AND OBJECTIONS

A public entity can respond to a CPRA request by asserting the appropriate protections and objections. The burden of establishing an exemption from disclosure is always born by the public entity. (Government Code §6255; Citizens for A Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704.) As such, the public entity needs to respond quickly to CPRA public document requests, and should have an initial understanding of the major exemptions through which documents can be protected.

Some of the key exemptions a public entity should consider in all CPRA requests, especially those when government tort claims and/or civil lawsuits are anticipated, are the following:

• Litigation records: records “pertaining to pending litigation to which the public agency is a party” are exempt until the litigation is finally adjudicated or otherwise settled. (Government Code §6254(b).) In order for this exemption to apply, the government entity must actually be a party to litigation, and when the government entity is a party to litigation, documents specifically prepared for use in litigation, even if not privileged, are exempt for disclosure so long as the dominant purpose for creating the document was use in litigation. (Fairley v. Superior Court (City of Long Beach) (1998) 66 Cal.App.4th 1414, 1420-22.) There are some required disclosures, such as the government tort claim itself and deposition transcripts which are otherwise available to the public, but a public entity that is a party to litigation has great use of this exemption so long as it remains a party, and should not turn over documents pursuant to a CPRA request without fully considering and utilizing this exemption.
• Personnel records are exempt from CPRA requests as an unwarranted invasion of privacy, and are not to be produced by public entities in response to a typical CPRA request. (Government Code §6254(c); Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530; San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097.) In addition to the statutory exemption, personnel records are subject to the right to privacy of the employee as well, protected by the California Constitution and United States Constitution.
• Medical files and files “similar” to personnel files, for employees and students within public entities, are exempt from production under §6254(c). A requesting party can attempt to obtain an order to produce the document by showing that a compelling public interest would be served through disclosure, but §6254(c) makes these documents presumptively exempt from CPRA requests, and a public entity can utilize the exemption to withhold production.
• Documents related to the deliberative process and employee relations data, including an agency’s impressions, valuations, opinions, recommendations and meeting minutes for instruction, advice and training of employees who do not have full collective bargaining representation and rights, and higher education and state employer-employee relations, are exempt. (Government Code §§3512-3599; Government Code §6254(b).)
• In a “catch-all” provision, the CPRA exempts records that are exempt from production under other laws and privileges. (Government Code §6254(k).) Examples of other laws prohibiting production include the attorney/client privilege, the work product doctrine, and medical peer review committees (Evidence Code §1157.6), among others. Also included are documents that are held confidential under the Brown Act (Government Code §54950), and pupil and student records of public schools (Education Code §49076; BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754 755.)
  
  BEST PRACTICES RECOMMENDATIONS FOR RESPONDING TO CPRA REQUESTS
  
  Given the many exemptions that apply to each and every CPRA request-- from those specifically enumerated and applicable only to CPRA requests (such as the litigation exemption) to those that are laws of general application incorporated within the catch-all exemption -- public entities are encouraged to create a checklist of exemptions and protections from CPRA requests. The public entity can identify the documents responsive within the 10-day period to respond, match those documents to the checklist of exemptions and protections, and, if necessary, seek the advice of counsel on documents that potentially fall within exempt or protected categories. By doing so, the public entity will ensure that statutorily protected documents are shielded from incidental production, and will also protect the rights to privacy of employees and students who may not want their private documents produced.