August 2021 Newsletter – School Districts

The California Fourth District Court of Appeals Provides Clarity to California Public Records Act Section 6255 (a) “Catch-All” Exemption

In recent months, we have seen a massive surge in requests for “public records” from school districts across the state.  Responding to these requests can be burdensome and time consuming, but a clear understanding of the law and what is required to comply can make it easier for a district to be ready to respond when these requests are received.

What obligation does a district have to provide records to the public?

In the interest of public access to public business, all California public school and community college districts are subject to the state’s Sunshine law – the California Public Records Act (“CPRA”.)  The Act is intended to ensure government accountability and transparency.  Under the Act a public record is defined as, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency, regardless of physical form or characteristics.”  (Gov. Code §§ 6452, et seq.; see also, Summary of the Act (2004).)

In 2017, the California Supreme Court laid out a four-part test to help agencies determine what constitutes a public record. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608.)  They held: 

A communication is a public record if:

  1. it is a writing,
  2. it contains information relating to the conduct of the public’s business,
  3. prepared, or
  4. owned, used, or retained by any state or local agency.  

The Court also looked at factors to consider when evaluating electronic communications. Factors to be considered are:  author, recipient, subject, content, whether it was prepared by an employee in the scope of employment, whether it includes elected officials.  Crucially, the Court held that it does not matter what account or device was used in the transmission of electronic messages – personal or governmental – all are subject to the Act if they meet the other factors.  

Exemptions to the CPRA

There are numerous exemptions to the requirement to disclose public records under the CPRA. (Govt. Code § 6254.) Additionally, there is what is known as the “catch all” exemption of Government Code Section 6255 (a) which permits withholding any record by demonstrating that on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Govt. Code § 6255 (a).) The balancing test provided in Section 6255 (a) has recently been applied to government entities seeking to withhold the exact location of COVID outbreaks to encourage cooperation with contact tracing efforts. 

On July 16, 2021, the California Fourth District Court of Appeal issued a decision whether the specificity of information a public entity is required to disclose during an emergency situation. Specifically, in Voice of San Diego v. The Superior Court of San Diego, San Diego County Super. Ct. No. 37-2020-00026651-CU-WM-CTL, pg. 36), the County of San Diego received CPRA requests from three separate news outlets requesting public records that include the exact location and location address of known outbreaks of COVID-19. While the County did maintain such records, it refused to disclose more detail than the applicable dates of the outbreak, the city where it occurred, the number of people involved, and whether the outbreak occurred in a community setting, a skilled nursing facility or a non-skilled congregate living facility. Any information as to the exact name and address of each outbreak location was redacted so as to encourage trust and candid cooperation from the public with the County’s contact tracing efforts. Three news outlets joined in suing for the release of the redacted information.

The Court of Appeals held that the public interest in the County of San Diego conducting effective contact tracing in the midst of a deadly pandemic clearly outweighs the public’s interest in obtaining information about the exact outbreak locations. Notably the decision does not require that public agencies redact such information. but rather, permits public agencies to withhold such information in similar circumstances.

Ultimately, the Courts have left it up to individual agencies to adopt policies to comply with the Act.  In light of the recent increase in CPRA requests, it may be a good time for districts to ensure their policies and procedures are in compliance and up to date.

For more information regarding this article, please contact Leo Santiago at lsantiago@ericksonlaw.com or Whitney Antrim at wantrim@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.