CA Court of Appeal says public documents become private as
soon as they are hidden by public servants
Why do public officials and employees use private email to do public business?
Why not use their work email accounts? The answer seems obvious: to skirt the laws
about public records. And now the California Court of Appeal has given its stamp of
approval to this practice.
Public servants who want to keep their actions secret breathed a sigh of relief when the
California Court of Appeal made it easy for them to conceal documents regarding public
The law says that “‘Public records’ includes 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."
Clearly, when a "state or local agency" prepares a document, it is an actual human being,
an official or employee or contract worker who is preparing it, not a disembodied "public
The law doesn't say that the document must be prepared AND retained by the agency in
order to be a public record. It says the documents must be prepared OR retained by that
agency. If a public servant is being paid by the taxpayers to work on a public issue, then
his or her writing about that issue is a public record.
Yet San Jose attorney Rick Doyle says that documents that "aren't retained or held by the
public agency" aren't public records. Public servants simply have to hide public documents
in order for those documents to become private! And the Court of Appeal agreed with him.
The Court basically found that if a document is not in the possession of the public entity,
then it isn't public.
Would this also apply to paper documents?
Logic would seem to require that it would.
Photo: These shredded documents survived
a burning spree in a parking lot at
San Ysidro School District
Apparently, a document can be switched at will from public to private. In the San Jose
case, all that is needed is to send it using a private email account rather than a public
email account. So why is the FBI investigating Manuel Paul of San Ysidro School District
for burning documents?
Perhaps public officials aren't off the hook quite yet. An agency may not have to turn over
documents that have been converted from public to private, but the court has NOT found
that the act of conversion itself is legal. Obviously, it would be extremely difficult to turn
over a document that had been incinerated. (Manuel Paul was a client of Dan Shinoff
(below), who applauded the Court of Appeal decision.)
Attorney James McManis says, "When you think about it -- it's just nuts. If they can hide
stuff by using their private devices, that's no way to run a railroad."
I have to agree with him. The decision is clearly a gift from the Court of Appeal to those
who want to circumvent the California Public Records Act.
San Diego school attorney Dan Shinoff, who is known for working hard to keep secret the
actions of school officials, spoke for many when he applauded the California Court of
Appeal for protecting public servants who prepare, use and retain written information
about public business in their private email accounts.
Mr. Shinoff, who represents 40 of the county's 42 school districts, applauded the judge's
ruling: “It's my opinion that the Court of Appeal correctly recognized that the reach of the
California Public Records Act is limited by the Legislature to records kept by the agency
and not private communications."
In my case, Maura Larkins v. Richard Werlin et al, Mr. Shinoff made copies of documents
created by employees at Chula Vista Elementary School District, and then told those
employees to keep the originals in their homes. Later Mr. Shinoff and his partner Ray
Artiano said in a deposition that the records couldn't be found at their law office. Since Mr.
Shinoff represents 40 of the 42 districts in San Diego County, I'm guessing that there are
a lot of public documents stashed away in private homes in the county. This makes me
wonder if Mr. Shinoff is keeping evidence from my case squirreled away at his house.
The San Jose decision concludes:
We conclude that the language of the CPRA does not afford a construction that imposes on the City 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.
Whether such a duty better serves public policy is a matter for the Legislature, not the courts, to decide.
In addition, it is within the province of the agency to devise its own rules for disclosure of communications
related to public business.
The obstacles noted by petitioners and the League—the legal and practical impediments attendant to
the extra task of policing private devices and accounts would also be addressed more appropriately by
the Legislature or the agency, not the courts.
I certainly agree that it is burdensome for public agencies to
search for public records in someone's private email account. So
why do those agencies allow officials and employees to use
personal accounts for public business?
We clearly need a law forbidding public servants from using
private email for public business and from using private storage
for public records.
Public Records Requests
Voice of San Diego explains
Attorney - client privilege
Voice of San Diego
by WILL CARLESS
February 6, 2009
For the last couple of days, I've been having a very interesting discussion with a prominent public lawyer,
who I've had public records spats with before, about my public records fight with the county.
The lawyer, who said I could quote him or her anonymously, said the county is on shaky legal ground by
claiming that an investigation it conducted is protected by attorney-client privilege and therefore does
not have to be released to the public under the California Public Records Act.
To re-cap: As I outlined in this story, the county spent more than a year investigating allegations about
improprieties at a program it administers called California Children's Services, which provides
wheelchairs and other medical equipment to children with disabilities. A report was produced on the
investigation, but the county has decide to keep that report from the public.
County officials have cited attorney-client privilege as the reason why they won't release the document.
Basically, because the investigation was carried out with the involvement of county attorneys, the county
has argued that it does not have to be made public.
My source disagrees. Here's an e-mail he or she sent me:
"The County is so full of shit on this one. California state law protects the attorney's
confidential communications pertaining only to the subject of communications in
direct relation to a pending legal proceeding."
Interesting. No one at the county has represented to me that the investigation was completed because of
pending legal action. Rather, I was told that the investigation was sparked by allegations made by a former
employee. My attorney source elaborated on what the law says about attorney-client privilege:
"No definition includes an entire investigation just because they used an attorney and had a stamp that
said attorney-client privilege. In general the privilege only covers communications from the client directly to
the attorney and arguably the advice given by the attorney to the client."
To back up the argument, my source sent me a link to a guide to attorney-client privilege compiled by the
Office of General Counsel of The California State University. The eight-page document makes interesting
reading, and it seems to back up my source's argument.
Section VI of the guide states a number of circumstances in which attorney-client privilege does not apply.
Here's one of those circumstances:
"Documents Provided to an Attorney
"Documents do not automatically become privileged simply because they are transmitted to, or
reviewed by, an attorney. What is privileged is the fact that a particular document has been provided to the
attorney, for purposes of soliciting legal advice -- not the document itself or the information it contains,
unless the document was prepared specifically for the purpose of soliciting the attorney’s advice.
Correspondence that is forwarded to an attorney for some purpose other than obtaining legal advice is not
So, just because the report that the county investigators produced was sent to and reviewed by county
attorneys doesn't immediately make that document privileged. The document must have been "prepared
specifically for the purpose of soliciting the attorney's advice."
In this case, I know that the investigation and the report were completed to get to the bottom of allegations
of misconduct. Whether or not the report was produced specifically to solicit legal advice is another
My source didn't think it was.
"Was the report truly legal in nature? I don't think so," my source said. "The rule protects a document or
conversation where I write to my attorney and say I need to get legal advice on something. Simply using an
attorney as an umbrella to keep the documents or communication secret doesn't count."
I've put in a call to County Counsel John Sansone to discuss this issue with him.
who do not have the
best interest of the
community at heart are
in control of...[public
--San Diego City Councilmember
Jim Madaffer's 2005 words about
the San Diego City Airports
CVESD Violations of Public
Terry Francke* suggests a per-day fine for "whatever period a public agency denies
access to a clearly public record.
Hiding the truth in schools
SDCOE Violations of
Public Records Act
Susan Fahle of CVESD refused to
provide Maura Larkins with the
documents requested a year earlier
about how much Daniel Shinoff had
recently been paid for representing
There are big problems in schools, and board members and others want to keep them secret.
Tuesday, December 19, 2006
Lora Duzyk and Dan Shinoff
say Shinoff works for SDCOE
According to the San Diego
County Office of Education's
website, it offers the following
slate of lawyers for school
districts to hire:
Atkinson, Andelson, Loya,
Ruud & Romo
Best, Best & Krieger
Parham & Rajcic
Link: List of approved
[Sorry, SDCOE has broken
But recently I sent a public
records request to SDCOE
asking for "a complete list
of attorneys currently
approved by the San
Diego County Office of
Education Joint Powers
Authority." Lora Duzyk
passed the request to Dan
Shinoff. He wrote that the
complete list consists of
the following lawyers:
Dan Shinoff of Stutz, Artiano,
Shinoff & Holtz
Randy Winet of Winet, Winet,
Patrick & Weaver
David Monks of Klinedinst
How can the lists be
completely different? It
apears that Shinoff is talking
about lawyers who represent
the JPA itself, not lawyers
approved by the JPA to
represent school districts.
Perhaps the JPA has a
contract with Shinoff that
hasn't run out yet.
I have learned from (former)
Grossmont Union High
Superintendent Terry Ryan
that Shinoff has an unwritten
Letters to the Editor
Voice of San Diego
By Vince Hall, Kensington
Feb. 5, 2009 |
...Your relentless pursuit of public
documents from agencies like
Development Corp. and the county
of San Diego highlights
President Lincoln's answer, "of the
people, by the people, for the
people," has been steadily eroded
by stifling layers of government
Confidentiality to protect personal
information or litigation needs is
one thing, but willfully refusing to
release public information to its
owners, the public, merely
because it is embarrassing is an
attack on the foundation of
I believe the time has come for
criminal penalties for public
officials who deliberately minimize
or delay the release of public
information, or who hide behind
attorney client privilege when no
litigation strategy is at risk...
As illustrated by your long record of
frustration in utilizing the Public
Records Act, there are more than
enough examples of actual
government malfeasance to write
about. Please keep up the good
Voice of San Diego
No Response on E-Mail
April 30, 2008
I just got word from Julie
Dubick, Mayor Jerry Sanders'
policy director, that the
Mayor's Office won't be
responding today to our
challenging of their
interpretation of the California
Public Records Act.
Dubick had originally told me
she would have a response
Some background: A wrongful
termination suit filed this
month alleges that a former
top city official was fired for
behavior by mayoral
spokesman Fred Sainz. One
of those accusations centered
on an e-mail flagged by the
city's computer system from
Sainz to local newspaper
editorial writer Bob Kittle that
I requested that e-mail
through the Public
Records Act. The Mayor's
Office refused to release
the e-mail Monday, saying
it was protected by an
exemption in the law.
While it didn't cite the
exemption, we're assuming
it's the pending litigation
Since then, we've been
contacted by a bevy of
attorneys (some offering to
file a lawsuit pro bono on
our behalf) who argue that
the mayor's interpretation
of the exemption is wrong.
The exemption only
specifically prepared for a
lawsuit, not any document
that happens to be
mentioned in a lawsuit,
they argue. If the e-mail
was public record before
the lawsuit, it should be
public record now, they
Stay tuned. Dubick didn't give
me a precise date as to when
the Mayor's Office might
respond. I'm writing her back
ACLU Sues Denver Police for Records of Internal
Investigations Related to ""Spy Files"" Controversy
June 14, 2005
FOR IMMEDIATE RELEASE
DENVER -- The American Civil Liberties Union of Colorado today filed a lawsuit against the Denver Police
Department seeking disclosure of the records of internal investigations that were prompted by the Spy
Files controversy in 2002 and 2003.
According to the lawsuit, Denver Police Chief Gerald Whitman withheld the records on the ground that
disclosure would be "contrary to the public interest."
"Once again the Denver Police Department has stonewalled, refusing to disclose even a single page of
the requested documents," said Mark Silverstein, ACLU of Colorado Legal Director. "And once again, the
Denver Police Department has claimed that disclosure of these public records would somehow be
harmful to the public interest. The department has it backwards. Sunlight is good, and disclosure furthers
the public interest."
The lawsuit was filed on behalf of Stephen and Vicki Nash as well as the ACLU. The Nashes, longtime
political activists in Denver, learned in 2002 that the Denver Police Department had been systematically
monitoring their lawful political activities and keeping files on their political associations. The Nashes,
who have no criminal records, were falsely branded in the department's Spy Files as "criminal extremists,"
a label that accompanied the Nashes' files when the police distributed them to third parties.
The Nashes were part of a class action lawsuit brought by the ACLU that challenged the police
department's practice of keeping files on peaceful activists. The lawsuit settled in 2003, when the police
department adopted a new intelligence policy that sharply restricts police from compiling files on First
That settlement, however, did not resolve a citizen complaint the Nashes filed in 2002 with the Public
Safety Review Commission. That complaint asked for a full investigation as well as discipline of the
officers responsible for spying on the Nashes and falsely branding them as "criminal extremists."
Twenty months later, in March 2004, Police Chief Gerald Whitman finally responded with a brief
two-paragraph letter. The letter said that the Denver Police Department had found sufficient evidence to
conclude that department regulations had been violated. It also said that as a result of the investigation,
changes had been made to department policies. Chief Whitman's letter provided no information about
which regulations had been violated, which officers were responsible, whether discipline was imposed or
any other details.
Invoking the Colorado open records laws, the ACLU asked Chief Whitman to disclose the records of the
investigation of the Nashes' complaint. The ACLU also asked for the records of two additional internal
investigations that had been prompted by the Spy Files controversy. Those requests were denied.
"The ACLU of Colorado is committed to challenging the Denver Police Department's repeated and
unjustified refusal to disclose public documents about how it investigates allegations of police
misconduct," said Silverstein...
Most NJ Police Departments Violate Law on Police
For Immediate Release
June 4, 2009
NEWARK - Today the American Civil Liberties Union of New Jersey released a report - The
Crisis Inside Police Internal Affairs (1.2mb PDF) - revealing that the vast majority of New
Jersey police departments do not follow state law regarding citizens' complaints against
police officers. The ACLU-NJ issued recommendations, including greater transparency,
reporting and oversight to fix the problems.
"This is the first report of its kind in the nation," said Samuel Walker who is Professor
Emeritus of Criminal Justice, University of Nebraska at Omaha, and the author of two books
on citizen oversight of the police. "It's stunning that a state with a strong law on internal
affairs could have so many departments out of compliance with the law."
The New Jersey law governing police complaints, called the Internal Affairs Policy and
Procedures, requires that all police departments have an accessible internal affairs process
that accepts complaints from both citizens and officers at any time, thoroughly investigates
them, interviews all parties and makes a finding at the conclusion of the investigation.
To determine whether that law was followed, the ACLU-NJ called over 500 police
departments to ask how a person could file a complaint; reviewed police internal affairs
statistics from around the state; reviewed 50 internal affairs files from individuals who filed
complaints; and obtained internal affairs statistics from every county.
Our telephone survey demonstrated that most departments violate state law on internal
affairs by insisting that complaints be filed in person (63 percent), refusing to accept
anonymous complaints (49 percent) and denying juveniles access to the complaint system
unless their parents participate (79 percent).
Many law enforcement agencies employ automated phone systems, which rarely gave
callers the option of filing a police complaint, and police personnel the ACLU-NJ spoke with
were often unsure of the complaint procedures. ACLU-NJ callers found it difficult to speak to
a live person, and callers who spoke different languages could not always connect to staff
Bush administration's novel reason for denying public records request:
Poway Unified School Dist. v. Superior Court (Copley
Press Inc.) (1998) 62 Cal.App.4th 1496 , 73 Cal.Rptr.2d 777
[No. D029634. Fourth Dist., Div. One. Apr 13, 1998.]
POWAY UNIFIED SCHOOL DISTRICT, Petitioner, v. THE SUPERIOR COURT OF
SAN DIEGO COUNTY, Respondent; THE COPLEY PRESS INC., Real Party in
(Superior Court of San Diego County, No. 713244, David J. Danielson, Judge.)
(Opinion by McIntyre, J., with Work, Acting P. J., and Nares, J., concurring.)
Stutz, Gallagher, Artiano, Shinoff & Holtz, Daniel R. Shinoff and Jack M. Sleeth, Jr., for
No appearance for Respondent.
Gray, Cary, Ware & Friedenrich and Guylyn R. Cummins for Real Party in Interest.
Thomas W. Newton, James E. Grossberg, and Anne H. Egerton as Amici Curiae on
behalf of Real Party in Interest.
We decide here whether a claim form submitted by a minor to a public school district under the
California Tort Claims Act (hereafter the Claims Act) (Gov. Code, fn. 1 § 910
et seq.), is protected against disclosure under (1) certain exemptions in the Public
Records Act (§ 6254, subd. (b) or 6255), or (2) the Family Educational Rights and
Privacy Act (hereafter FERPA) (20 U.S.C. § 1232g) and/or Education Code section
49060. We conclude these provisions of law do not protect the information from
FACTUAL AND PROCEDURAL BACKGROUND
As part of a hazing incident at a high school in the Poway Unified School District
(District) in March 1997, three 16-year-old sophomores brutally [62 Cal.App.4th 1500]
sodomized a 15-year-old freshman student with a broomstick. After the perpetrators
pleaded guilty, they were sentenced in juvenile court. In proceedings attended by the media, the victim's
identity was disclosed.
The media provided wide coverage of the sentencing court's comments excoriating the District for
tolerating a climate of abusive initiation practices. In addition, the parents of the perpetrators agreed to the
public release of confidential juvenile court records and files concerning prior hazing incidents to publicize
the history of hazing at the high school. However, in accordance with its own policy, the Union-Tribune, a
San Diego newspaper, did not publicize the name of the victim or the perpetrators.
One of the perpetrators then submitted a Claims Act claim against the District. The claim apparently
included a description of prurient details about the attack. There were also claims submitted by other
students, based on different hazing incidents at the same high school.
The victim did not submit a formal Claims Act claim to the District. However, the
victim's attorney sent a letter in May 1997, urging settlement of the victim's potential
claim, and raising the issue of confidentiality: "Because I am keenly aware of your duties as trustees for
the children and residents of your community I believe that you will want to deal with your district's liability
to [the victim] in a professional and, if possible, a confidential way." The victim and the District did settle, in
part to protect the privacy of the victim, and the superior court ordered the settlement sealed.
Nonetheless, in September 1997, the victim's attorney and the District participated in a press conference
to announce the fact of settlement.
Meanwhile, in July and August 1997, the Union-Tribune sought access "to any and all [Claims Act] claims
filed with the District between March 20, 1997 through July 18, 1997" under the Public Records Act.
However, the District refused to provide unresolved claims, citing the "open claims" exemption to the
Public Records Act and its own concern about protecting the privacy of the minor victim of the assault. (§
6254, subd. (b).) The Copley Press Inc. (Copley), publisher of the Union-Tribune, thereupon filed a petition
for writ of mandate in the trial court, contending these reasons for nondisclosure did not apply.
The trial court granted the writ; ordered the District to produce records with names,
addresses and telephone numbers of the minors redacted; and denied the request for stay.
It also awarded attorney fees and costs to Copley pursuant to section 6259. The District
has produced redacted records in compliance with the order. [62 Cal.App.4th 1501]
The District filed this petition, asking for published guidance concerning its duties on an
issue likely to recur. fn. 2 Other media representatives joined Copley's opposition as
amici curiae, and the County of San Diego expressed its particular interest in clarification
of the issue under FERPA (20 U.S.C. § 1232g), and/or Education Code section 49060.
The Public Records Act specifies that any public record in the possession of a state or
local agency must be disclosed to any citizen unless an exemption applies. (§ 6253.) It
enumerates specific exemptions, and also provides a catchall withholding clause,
allowing nondisclosure of a record if the government can demonstrate that public policy
necessitates nondisclosure. (§§ 6254, subd. (b), 6255.)
"Public records" is defined in broad terms, to include: "[A]ny 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." (§
6252, subd. (d).) This broad definition is designed to protect the public's need to be
informed regarding the actions of government, as expressed both in the Public Records
Act and in the open meeting requirements of the Ralph M. Brown Act (§ 54950 et seq.).
(Note, The California Public Records Act: The Public's Right of Access to Governmental
Information (1976) 7 Pacific L.J. 105, 110-111.) Indeed, secrecy is "antithetical to a
democratic system of 'government of the people, by the people [and] for the people.' "
(San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771-772 [192
Balanced against the public's right to know is the victim's right to privacy. (See Welf. &
Inst. Code, § 676, subd. (b) [barring the public from juvenile court hearings, even on
serious crimes, upon request of the victim]; Pen. Code, § 293.5 [analogous protections in
criminal proceedings]; § 6254, subd. (f)(2) [allowing a state or local agency compiling
law enforcement records to withhold the name of a minor victim of enumerated crimes at
the request of his parent]; and § 54961, subd. (b) [Brown Act exception to disclosure
requirements in sex crime cases].) People v. Ramirez (1997) 55 Cal.App.4th 47 [64
Cal.Rptr.2d 9], eloquently articulated the privacy concern for these types of crimes:
"There can be little dispute that the state's interest in protecting the privacy of sex offense
victims is extremely strong and fully justified. 'No [62 Cal.App.4th 1502] crime is more
horribly invasive or more brutally intimate than rape.' [Citation.]" (55 Cal.App.4th at p.
" 'Privacy' is not an insignificant interest--it is described in our state Constitution as one
of our 'inalienable rights.' (Cal. Const., art. I, § 1.) In the context of the victim of a sex
offense, our Legislature . . . has likewise determined that the privacy interest of such a
victim is significant. . . . [M]any victims are reluctant to report sex offenses 'because of
fear they will be publicly identified and humiliated.' [Citation.]" (55 Cal.App.4th at p.
In this context, we discuss the various bases for withholding the claims presented here.
1. Exemption Under Section 6254, Subdivision (b)
Section 6254, subdivision (b) provides:
"[N]othing in this chapter shall be construed to require disclosure of records that are any
of the following:
"(b) Records pertaining to pending litigation to which the public agency is a party, or to
claims made pursuant to Division 3.6 (commencing with Section 810), until the pending
litigation or claim has been finally adjudicated or otherwise settled."
To initiate litigation against a public entity, it is well established that a plaintiff must first
file a claim under the Claims Act. (§§ 945.4, 912.4; Munoz v. State of California (1995)
33 Cal.App.4th 1767, 1776 [39 Cal.Rptr.2d 860].) Section 910 specifies the information
to be included, some of which may implicate privacy concerns. Many public entities
provide forms for this purpose. (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 1997) ¶ 1:681, p. 1-144, rev. # 1, 1996.)
There are no California cases deciding whether the exemption of section 6254,
subdivision (b) encompasses the actual claim form itself. Although the Public Records
Act is modeled on the federal Freedom of Information Act (5 U.S.C. § 552), the federal
statute contains no comparable provision for guidance in interpreting the California
statute. (Schaffer, A Look at the California Records Act and its Exemptions (1974) 4
Golden Gate L.Rev. 203, 216.)
There is a 1988 opinion by the California Attorney General, which concludes the
exemption does not encompass the Claims Act claim form [62 Cal.App.4th 1503] itself.
(71 Ops.Cal.Atty.Gen. 235, 238 (1988)...
[2a] Here, harmonization supports the conclusion that Claims
Act claim forms are not exempt from disclosure pursuant to
section 6254, subdivision (b). A related statute, part of the
Brown Act, expressly acknowledges the availability of the
Claims Act claims
themselves for public inspection, referencing the Public Records
Act. (§ 54956.9, subd. (b)(3)(C).) fn. 3
...The March 1970, Final Report of the California Assembly Statewide Information Policy Committee, at
page 9, offered this explanation for its proposed version of the statute, a version adopted by the legislature
significant modification: "Records relating to [litigation and claims] are
available after adjudication or settlement. This section, in effect,
upholds the attorney-client privilege. Subsections (f) and (k) also
contribute to the strength of that privilege." The reference to the
attorney-client privilege demonstrates an intent to protect only
documents created by the public entity.
[2b] As explained in Roberts v. City of Palmdale (1993) 5 Cal.4th 363 [20 Cal.Rptr.2d
330, 853 P.2d 496]: "Subdivision (b) [of section 6254] '. . . was primarily designed to
prevent a litigant opposing the government from using the [Public] Records Act's
disclosure provisions to accomplish earlier or greater access to records pertaining to
pending litigation or tort claims than would otherwise be allowed under the rules of
discovery . . . There is no unfair disadvantage to the
public entity from disclosure of the mere claim form. Thus, a Claims Act form itself does
not fall within the exemption of section 6254, subdivision (b).
2. Exemption Under Section 6255
Section 6255 offers a catchall exemption from disclosure: "The agency shall justify
withholding any record by demonstrating that the record in question is exempt under
express provisions of this chapter or that on the facts of the particular case the public
interest served by not making the record public clearly outweighs the public interest
served by disclosure of the record."
 Minors, as well as adults, possess a constitutional right of privacy under the California
Constitution. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 334
[66 Cal.Rptr.2d 210, 940 P.2d 797].)  Proof of an invasion requires not only a legally
protected privacy interest, but also a reasonable expectation of privacy in the
circumstances, and conduct by the defendant constituting a serious invasion of privacy.
(Id. at p. 330; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40 [26
Cal.Rptr.2d 834, 865 P.2d 633].)  Under the facts presented here, the second and third
elements of a privacy claim are absent.
First, there has been no showing of any reasonable expectation of privacy under the
circumstances. While section 910 does require a claimant to provide some potentially
private information, generally, one who submits a tort claim has no reasonable
expectation of privacy. (Register Div. of Freedom Newspapers, Inc. v. County of Orange
(1984) 158 Cal.App.3d 893, 902 [205 Cal.Rptr. 92].)
...Nor has the District established conduct by the Union-Tribune
evincing a serious invasion of privacy. The newspaper has a
policy of protecting the [62 Cal.App.4th 1506] identity of victims
of sex crimes and juvenile offenders. The information is relevant
to a legitimate and important competing public interest in
ending school hazing practices
potentially endangering many children. The importance of public scrutiny of
involving serious juvenile crimes is recognized in Welfare and Institutions Code section
676, which allows members of the public to attend hearings involving serious crimes
such as rape, sodomy or assault. Importantly, the District has the power to address
privacy concerns by redacting released materials, under the supervision of the trial court,
as was ultimately done here. (U.D. Registry, Inc. v. State of California (1995) 34
Cal.App.4th 107, 115 [40 Cal.Rptr.2d 228].)...
 The apparent purpose of FERPA is to ensure access to educational records for
students and parents and to protect the privacy of such records from the public at large.
(Bauer v. Kincaid (W.D.Mo. 1991) 759 F.Supp. 575, 590-591 [112 A.L.R.Fed. 671].)
FERPA conditions federal educational funding on maintaining the privacy of "education
records other than directory information . . . ." (20 U.S.C. § 1232g(b)(2).)...
It defies logic and common sense to suggest that a Claims Act claim, even if presented on
behalf of a student, is an "educational record" or "pupil record" within the purview of
these exemptions. Just because a litigant has chosen to sue a school does not transmogrify
the Claims Act claim into such a record. We therefore conclude the release of such a
claim implicates neither FERPA nor its California counterpart.
The District's petition to vacate the trial court's order granting the petition for writ of
mandate is denied. Copley is awarded attorney fees and costs. (See § 6259, subd. (d).)
Work, Acting P. J., and Nares, J., concurred.
Petitioner's application for review by the Supreme Court was denied July 29, 1998.
Kennard, J., was of the opinion that the petition should be granted.
FN 1. All statutory references are to the Government Code unless otherwise specified.
FN 2. " 'If an action involves a matter of continuing public interest and the issue is likely
to recur, a court may exercise an inherent discretion to resolve that issue, even though an
event occurring during its pendency would normally render the matter moot.' " (Morehart
v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747 [29 Cal.Rptr.2d 804, 872 P.2d
143], quoting Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716 [106 Cal.Rptr.
21, 505 P.2d 213].)
FN 3. Section 54956.9, sets forth six circumstances where "existing facts and
circumstances" suggestive of "significant exposure to litigation" allow a closed session to
be held by the legislative body of a local agency, and provides that one of the six
"(b)(1)(C) The receipt of a claim pursuant to the Tort Claims Act or some other written
communication from a potential plaintiff threatening litigation, which claim or
communication shall be available for public inspection pursuant to Section 54957.5."
Section 54957.5. in turn provides:
"(a) Notwithstanding Section 6255 or any other provisions of law, agendas of public
meetings and any other writings, when distributed to all, or a majority of all, of the
members of a legislative body of a local agency by any person in connection with a
matter subject to discussion or consideration at a public meeting of the body, are
disclosable public records under the California Public Records Act, . . . and shall be made available upon
request without delay. However, this section shall not include any writing exempt from public disclosure
under Section 6253.5, 6254, or 6254.7.
"(b) Writings which are public records under subdivision (a) and which are distributed
during a public meeting shall be made available for public inspection at the meeting if
prepared by the local agency or a member of its legislative body, or after the meeting if prepared by some
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) This section shall not be construed to limit or delay the public's right to inspect any record required to
be disclosed under the requirements of the California Public Records Act . . . ."
FN 4. Education Code section 49061, subdivision (b) provides in part:
" 'Pupil record' means any item of information directly related to an identifiable pupil,
other than directory information, which is maintained by a school district or required to be maintained by
an employee in the performance of his duties whether recorded by handwriting, print, tapes, film,
microfilm or other means.
" 'Pupil record' shall not include informal notes related to a pupil compiled by a school officer or employee
which remain in the sole possession of the maker and are not accessible or revealed to any other person
except a substitute."
Education office won't
release records until October
By Jeff McDonald, UNION-TRIBUNE
August 17, 2010
The San Diego County Office of
Education says it will need nearly two
months to disclose how much it
spends on lawyers.
The schools office, which represents
dozens of districts and manages
pensions for thousands of teachers
and administrators, said in a letter to
The Watchdog received Tuesday that
it would not be able to comply with a
California Public Records Act request
“We will contact you as soon as the
records are available for your
inspection and/or purchase of a
copy,” states the correspondence,
signed by Pam Gilles, the senior
director of internal business services.
Over the five years ending in 2008,
the county schools office spent more
than $7 million on outside legal
services, much of it to a single law
firm, Stutz, Artiano, Shinoff & Holtz.
The schools office continues to
litigate at least two high-profile
cases, one involving a long-running
dispute with former brokers with the
office’s deferred-compensation plan
and the other with a former employee
alleging wrongful termination.
On Aug. 4, The Watchdog requested
records reflecting the past five years’
worth of legal fees paid by the office.
But according to Gilles, those
documents “will be available on or
about Oct. 1, 2010.”
UCLA Faculty Association
THURSDAY, MAY 24, 2012
Lawsuit: Urban Wildlands Group
Takes Aim at UCLA Over
Proposed Archery Facility
Readers of this blog may recall
an earlier post about a
proposed UCLA archery facility
to be located south of the Child
Care Center along Veteran
Avenue. Concerns have been
raised about the proposal on
ecological and other grounds.
Readers who have been
following the UCLA hotel issue
will know that UCLA was not
forthcoming in response to
Public Records Act requests by
the Faculty Association and
other groups and did not
provide the requested
information on a timely basis.
The original post regarding the
archery facility is at:
The Urban Wildlands Group
has filed a lawsuit against the
Regents regarding similar
stonewalling by UCLA regarding
documents it requested related
to the archery facility.
|San Diego Education Report
Man charged $56,000 for requesting records from school district
If publisher Tim Crews loses his public records case, we all lose
October 15, 2012
Amicus Brief in this case
The ability of Californians to scrutinize their government may rest on the outcome of a little-
known case unfolding in a tiny Northern California town.
It began routinely enough. Tim Crews, the pugnacious, 69-year-old editor and publisher of
the Sacramento Valley Mirror, a twice-weekly newspaper that serves Glenn County, filed a
request under the California Public Records Act for records held by the local school district.
Specifically, Crews was looking for evidence that district officials might have spent public
money to influence the outcome of a local election.
District officials did what public officials in California all-too-often do when confronted with a
request they don't like. They stalled. At first, they refused to turn over anything. Then they
turned over some of the records Crews had asked for, but in a format that made it
impossible to search them. And when Crews asked for attachments referred to in some of
the emails released in the request, the district refused to hand them over.
Crews is nothing if not dogged. He kept at it, finally persuading a judge to review thousands
of the documents in chambers. The judge spent 45 minutes going through the material and
then declined, without explanation, to release any more of it.
Up to that point, the case was fairly unremarkable, one of thousands of disputed but
ultimately resolved Public Records Act requests that wind their way through public agencies
and courts every year. But then the judge in Crews' case, Peter Twede, did something
extraordinary: He concluded that Crews' request had been frivolous, and he ordered Crews
to pay not only his own legal bills but those of the school district. For the privilege of
obtaining documents that were his legal right to have, Crews was ordered to pay more than
$100,000, an amount later reduced to $56,000.
If the judgment stands — Crews has appealed — it would have a devastating effect on the
newspaper, which only has about 2,800 paid subscribers. "It would wipe us out," Crews told
me last week.
It would do more than that. If upheld by the appellate courts, the judgment would radically
alter the contours of the Public Records Act in California. Imagine if every time citizens asked
for records under the act, they faced the possibility of having to bear not only their own legal
expenses but also those that the agency might run up defending itself. Who could afford
The consequences of Crews' case are so far-reaching that a number of organizations have
come to his defense, including the First Amendment Coalition (on whose board I serve
without compensation). William T. Bagley, who wrote California's public records law while in
the Assembly in the late 1960s, has also filed an amicus brief in support of the editor.
Crews is used to conflict. He went to jail for five days in 2000 for refusing to identify a
source. It wasn't so bad, he recently recalled. "I watched a couple movies; wrote some long,
long columns." Over the last five years he's filed more than a dozen cases seeking public
records or claiming violations of the state's open meetings laws. It's easy to see why some
officials are annoyed by him, but he doesn't scare easily.
Still, with the future of his newspaper at stake, Crews is taking the threat seriously. The
paper has never missed a publication date in the 23 years he has been there, and it has
served as an important watchdog of local government, in the best tradition of community
All that is reason enough to be troubled by the action of the judge in the Crews case. But the
potential damage to the public extends well beyond Glenn County and even beyond the
Public Records Act itself.
If upheld, this ruling would fundamentally reorient the relationship between the people of
California and those who represent them. It would require members of the public to put
themselves at risk to learn about their own government. It would recast government
agencies and elected officials as immune from public scrutiny rather than accountable
through that scrutiny.
As the Public Records Act itself states: "The people of this state do not yield their
sovereignty to the agencies which serve them." For that reason alone, Crews deserves to
win and his paper to survive.
and Disclosure of
must make available for
public inspection Forms
Income Tax Return. IRS
guidance provides as
Guidelines in Treas.
Reg. § 301.6104(d)-1
and Notice 2007-45, for
making annual returns
available for inspection
and copying generally
continue to apply,
except that a return
covered by the
guidelines includes an
exact copy of a Form
990-T filed by a charity
after August 17, 2006.
The return also includes
that relate to the
imposition of tax on the
income of the charity.
documents that do not
relate to the imposition
of the unrelated
business income tax do
not have to be made
available for inspection
For more information
about which attachments
to Form 990-T are
subject to disclosure, see
Public Inspection of
Attachments to a
[Records for the
most recent three
years must be
A charity must make
Form 990-T available
only for the three years
beginning on the last
extensions) for filing the
The IRS must make
Forms 990-T filed by
available; use Form
4506-A to request
copies. Copies of Forms
990-T on DVD may be
purchased from the IRS.
Get the Facts: 990
Have you ever requested
a Form 990 from an
Did the organization
request? Did the
organization comply with
the request in a
reasonable and timely
manner? We asked our
newsletter readers these
question in June.
Some 55 percent of
they have requested a
Form 990. Of that 55
percent, roughly 71
percent stated that they
received the document in
a timely fashion. Kevin
McCumber of the Rural
commented, "Prior to
availability of most 990s
on GuideStar, I
requested dozens of
990s from other
organizations. Nine out of
ten responded promptly."
Not all our readers,
however, were so
fortunate. "The request
was denied by the
financial manager of the
nonprofit," said Penny
Eardley of Boys Hope
Girls Hope of Nevada
"Wisely, he mentioned
the request to his
supervisor who then
tracked me down to
assure me that he would
prepare a copy of the
990 for me that day."
June's question of the
month also asked
readers if they had ever
been asked to provide
their organization's Form
990. Some 53 percent of
they had. In some cases
the request came from a
foundation from which
they were seeking
funding; other requests
came from similar
organizations that wanted
to perform a comparison.
So, exactly what are the
IRS regulations regarding
Form 990 disclosure?
How do you know as an
employee of a nonprofit
organization when you
are required to provide
your Form 990? How do
you know as an
interested party if you
are eligible to request
and receive an
organization's Form 990?
The IRS states that
under IRC 6104 nonprofit
organizations must make
their three most recent
annual returns publicly
reasoning behind this law
was to allow the general
public access to the
returns of organizations
and trusts that accept
donations from the public.
There are several
documents that are
covered under the
disclosure law, including
IRS Forms 990, 990-EZ,
990-PF, and 1023 and an
organization's letter of
Form 990 or 990-EZ.
With the exception of
nonprofits with incomes
of more than $25,000
must file this return
annually with the IRS.
The three most recent
returns must be made
available along with any
although the names and
addresses of contributors
must be masked on
copies made available to
the public. Amounts of
bequests must be
disclosed, unless they
Form 990-PF. A private
foundation must follow
the disclosure rules that
apply to Forms 990 and
Form 1023. A charitable
for exemption (Form
1023), any attachments
to the application, and
any materials the IRS
requests in connection
with the application must
also be disclosed.
Letter of determination.
An organization must
make its letter of
determination available to
If this information is
requested in person at a
office, generally the
provide the information
that day. If the
information is requested
in writing, the
organization usually has
30 days to comply.
Keep in mind that
organizations do have
the right to charge the
copying costs" for the
document in question.
The allowable charge is
the same amount
charged by the IRS for
for the first page and $.
15 for each subsequent
What happens if the
information is not
supplied? The penalty for
not disclosing an annual
return is $20 per day for
as long as the failure to
comply continues, up to a
maximum of $10,000
maximum fee per return
not disclosed. There is
no maximum fee for
failure to provide the
application for exemption.
Organizations that do not
wish to provide hard
copies of these document
(s) do have another
option: they can post a
copy on their Web site.
With the exception of
masking donor's names
and addresses on Forms
990, 990-EZ, and 990-
PF, the documents must
not be altered in any way.
nonprofits have found
that having their annual
returns available on
GuideStar has made
their jobs easier. "We
now direct requests to
your Web site; many
persons may go directly
there and not even ask
us," explained one
obtains the documents
directly from the IRS and
posts them to our Web
site in PDF format.
To obtain more
information about IRS
take a look at some IRS
FAQs regarding public
Records were produced by
SDCOE after Ron Cozad filed
petition for writ of mandate; that
petition has disappeared from
the Superior Court index of
cases. About $8000 in attorney
fees was awarded.
Southwestern College police
chief who fired gun at head
level in his headquarters is
back on the job without
Two employees who escaped his
bullet are out on stress leave
The law firm of Liebert, Cassidy, Whitmore, which represents school districts, apparently advised
Southwestern College to keep its police chief on the job after he pulled out his gun and let a bullet fly in
police headquarters at Southwestern College.
"After his reinstatement, Cash dropped in on the office of The Sun and said he would
be willing to talk to student journalists about the episode and subsequent events.
During a two-and-a-half hour interview Cash again apologized for the gunfire and said
the campus community did not need to worry. He refused to say why he was holding
his gun that morning, why it was pointed at head level or why he pulled the trigger,
citing 'personal confidentiality.'”
"Personal confidentiality"?" It is NOT a confidential matter when a public employee fires a
gun in his office, even if it didn't hit anybody. The Chula Vista Police Department, by not
investigating, is failing to fulfill its duty to protect the public.
Sun Editorial Board: Letter to Superintendent/ President Dr. Nish
Written by: Sun Staff
The letter was given to the superintendent’s office on 11/20/13 and we request the report be given to us
within 24 hours, by 4:30pm on 11/21/13.
Dear Dr. Nish,
As you certainly know, the recent events surrounding Southwestern College Police Chief Michael Cash are
of great interest to the students, employees and community of Southwestern College. The incident
involving his discharge of a weapon on campus, suspension, investigation and reinstatement are matters
of public interest. Members of this community have the right to know what happened that morning at
campus police headquarters, information leading to his suspension, the findings of the college-ordered
investigation and the circumstances leading to the college’s decision to restore Chief Cash to his position.
Our numerous requests for information from you, campus administrators and governing board members
have been declined or ignored, including, most recently, a formal request made to the governing board of
the college at its November 6 meeting.
It is our firm belief that Southwestern College is now in violation of California
Public Access and Media Law by refusing to divulge basic, routine information
about the Cash incident and by covering up evidence, applying a gag order on
employees and refusing to share reports paid for with public funds with the public
that paid for them. It is our position that the college is misinterpreting the “Personnel,
medical and similar files” clause of the Government Code section 6254(c) as justification for
hiding the investigators report from public view. The law does not support the college’s
position. “This exemption, known as the ‘personnel exemption,’ is routinely invoked when the
public agency believes a request seeks information pertaining to identifiable public officials
or employees that is private or controversial. However, this exemption was developed to
protect intimate details of personal and family life, not official business judgments and
relationships.” (Bakersfield City School Dist. V. Superior Court, 118 Cal App. 4th 1041, 1045)
Click to download/view original PDF
Personnel exemption has been soundly rejected by California courts in matters of
investigations of employee misconduct. In fact, the California Courts have
established a liberal standard for disclosure of public records relating to
complaints or investigations of misconduct by public employees. Courts have held
that “there is a public policy against disclosure of trivial or groundless charges,” but that
“where the charges are found true, or discipline is imposed, the strong public policy against
disclosure vanishes.” This is true even where the sanction is a private reproval. “In such
cases a member of the public is entitled to information about the complaint, the discipline,
and the information upon which it is based.” (American Federation of State, County and
Municipal Employees v. Regents of the University of California, 80 Cal. App. 3rd 913,
Courts have also held that “where there is reasonable cause to believe the
complaint to be well founded, the right of public access to related public records
exists.”(American Federation of State, County and Municipal Employees v. Regents of
the University of California, 80 Cal. App. 3rd 913, 918 (1978).
With respect to high-level public servants, disclosure of an investigation into misconduct is
required even if the charges are found not to be reliable and the official is exonerated. “In
this circumstance, the public’s interest in understanding why (the official) was
exonerated and how the (agency) treated the accusations outweighs (the official’s)
interest in keeping the allegations confidential.” (BRV, Inc. v. Superior Court, 143
Cal. App. 4th 742, 759) (2006).
California’s State Constitution is clear about this issue and comes down firmly on the
side of our request. Article (b)(1) reads: “The people have the right of access to
information concerning the conduct of the people’s business, and, therefore, the
meetings of public bodies and writings of public officials and agencies shall be
open to public scrutiny.”
Furthermore, these rights “shall be broadly construed if it furthers the people’s right
to access, and narrowly construed if it limits the right of access.”
The law is very clear on this matter. The Southwestern College community has the
right to access the Kelepecz Report pertaining to Chief Cash as well as any
information generated by college officials about the decision-making process
related to the investigation of Chief Cash and his exoneration.
We, therefore, with all due respect, ask once again for a full, unedited copy of the Kelepecz report and all
other college documents related to Chief Cash’s firing of his weapon, his suspension, the related
investigation and the administration’s decision-making process leading to his reinstatement. As this
information has been requested multiple times already over the period of a month, we respectfully ask for
this information in print format within 24 hours or no later than 4:30 p.m. Thursday, November 21, 2013.
David McVicker, Editor in Chief
The Southwestern College Sun
and the members of the Southwestern College Sun Editorial Board
|News, information and ideas about our
education system, courts and health care
by Maura Larkins