Privacy Issues in the Community College Workplace

The California Public Records Act 312 was enacted with the objective of increasing public access to government records. Like the federal Freedom of Information Act 313 upon which it was modeled, the general policy of the Act favors disclosure. 314 Support for refusal to disclose information “must be found, if at all, among the specific exceptions to the general policy that are enumerated in the Act.” 315 The Act applies to “public records,” which are 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.” 316 The mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty it is a public record. 317 In City of San Jose v. Superior Court 318 , a California Court of Appeal made a distinction between messages stored on personal electronic devices and personal accounts, and messages stored on electronic devices issued by the agency. The court held that CPRA does not impose on an agency an affirmative duty “to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a CPRA request for messages relating to City business.” 319 The California Supreme Court has granted review of the Court of Appeal’s decision 320 and, while the California Supreme Court’s decision is pending, the Court of Appeal’s decision may not be cited as precedent or relied upon by anyone. come into governmental possession. 321 California courts have construed the statutory exemptions narrowly in order to accomplish the general policy of disclosure. 322 Importantly, Section 6254(c) exempts personnel, medical or similar files if the disclosure would “constitute an unwarranted invasion of personal privacy.” Courts will employ a balancing test in determining whether records should be exempt from disclosure under Section 6254(c) and weigh the individual’s right to privacy against the right of the public to oversee the actions of governmental employees. 323 a. Home Addresses and Telephone Numbers Section 6254.3 excludes the home addresses and home telephone numbers of state employees and employees of school districts and county offices of education from the definition of “public record” and exempts them from public inspection, except in specifically delineated situations. Telephone numbers relating to calls made and received by city council members have been found exempt from the disclosure requirements of the Public Records Act, based upon the deliberative process privilege. In reaching this conclusion, the court analogized the facts of the case to a California Supreme Court case that ruled that releasing copies of a state Governor’s appointment calendars and schedules for a five-year period would compromise the deliberative process. The deliberative process privilege protects from disclosure the substance or direction of judgment and mental processes. 324 Section 6254 provides exemptions to the disclosure requirements of the Act for certain records. The exemptions are designed to protect privacy interests of individuals whose data or documents

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 102