How Exemptions from Disclosure Operate
California Public Records Act:
How Exemptions from Disclosure Operate
Q: Does a CPRA exemption mean that disclosure is prohibited?
Q: May records be selectively disclosed to the public — to some people, but not to others?
Q: Why is it always important to consider whether a record has been selectively disclosed to someone else?
Q: When may selective disclosures still leave the exemption in force?
Q: Which exemptions from disclosure are most frequently used by public agencies?
Q: Does a CPRA exemption mean that disclosure is prohibited?
A: Not ordinarily. While exemptions from disclosure in the Act are commonly treated by agencies as if they prohibited disclosure, in fact almost all of them are simply discretionary — the agency may withhold the information, but is not required to. The agency is free to allow more extensive access unless the contrary is clearly expressed. The Act introduces the general exemption rule thus:
Section 6254. Except as provided in Section 6254.7, nothing in this chapter shall be construed to require disclosure of records that are any of the following: . . . Nothing in this section prevents any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.
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Q: May records be selectively disclosed to the public — to some people, but not to others?
A: No. If an agency discloses a record to a “member of the public” — a person with no particular official role or special legal entitlement to obtain it — that record cannot then be withheld from other members of the public on the basis of a permissive exemption. The agency may change its general policy and take a more restrictive line concerning a certain type of document in the future, but in all but a few situations, a particular record cannot selectively be made accessible to some members of the public and not to others. The Act states:
Section 6252. As used in this chapter: . . . (f) ‘Member of the public’ means any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the scope of his or her membership, agency, office, or employment.
Section 6254.5. Notwithstanding any other provisions of the law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law. For purposes of this section, “agency” includes a member, agent, officer, or employee of the agency acting within the scope of his or her membership, agency, office, or employment.
This section, however, shall not apply to disclosures:
(a) Made pursuant to the Information Practices Act (commencing with Section 1798 of the Civil Code) or discovery proceedings.
(b) Made through other legal proceedings.
(c) Within the scope of disclosure of a statute which limits disclosure of specified writings to certain purposes.
(d) Not required by law, and prohibited by formal action of an elected legislative body of the local agency which retains the writings.
(e) Made to any governmental agency which agrees to treat the disclosed material as confidential. Only persons authorized in writing by the person in charge of the agency shall be permitted to obtain the information. Any information obtained by the agency shall only be used for purposes which are consistent with existing law.
(f) Of records relating to a financial institution or an affiliate thereof, if the disclosures are made to the financial institution or affiliate by a state agency responsible for the regulation or supervision of the financial institution or affiliate.
(g) Of records relating to any person that is subject to the jurisdiction of the Department of Corporations, if the disclosures are made to the person that is the subject of the records for the purpose of corrective action by that person, or if a corporation, to an officer, director, or other key personnel of the corporation for the purpose of corrective action, or to any other person to the extent necessary to obtain information from that person for the purpose of an investigation by the Department of Corporations.
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Q: Why is it always important to consider whether a record has been selectively disclosed to someone else?
A: The exemption waiver rule – that information disclosed to one member of the public cannot then be denied to others – can be the most valuable trump card played by an information requester. If it fits the situation, the information is accessible no matter how plausible the excuse the agency might have had for withholding it otherwise.
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Q: When may selective disclosures still leave the exemption in force?
A: In order to use the exemption waiver rule, the requester must be prepared somehow to establish that the information sought has indeed been made available to some other “member of the public,” under circumstances such that none of the exceptions to the waiver rule applies. Those exemptions are:
Special Legal Acess. If the other member of the public got the information only through the exercise of some special legal rights, the disclosure was not a matter of the agency’s discretion: it was compelled, and thus does not amount to a waiver of its right to say “no” to others seeking the same information. For example, the Information Practices Act gives individuals the right to obtain information which a state agency has compiled about them, in order that they may protect their privacy interests and insure that the information is not erroneous. The fact that the agency provides them with this information does not mean that it cannot thereafter assert the personal privacy exemption when others ask for the information. Similarly, a person suing a government agency may use the rules of litigation discovery to demand documents which the agency would not have otherwise released. Providing these records to the plaintiff does not waive the agency’s ability to deny access to others. Likewise, for example, a parent of a public school pupil can demand to see the educational institution’s files concerning his or her child’s academic performance, disciplinary status or other “pupil personnel” records. While the school must accommodate such a demand, in doing so it does not waive its ability to deny such access to others.
Limited Legal Purposes. Some laws create a general rule of non-disclosure but then list specific parties to whom, and purposes for which, the information may or must be disclosed. For example, information compiled by a government agency about a person’s criminal history is generally confidential, but can be released to specific recipients for closely defined purposes, including but not limited to those who employ people who will have supervision over children and need to be aware of any criminal background of their applicants. The disclosure of criminal history information to a prospective employer in this scenario does not waive the agency’s ability to deny access to others.
Prohibited Leaks. If a public agency or one of its employees informally slips a copy of a record to one person, its ability to deny access to others is generally waived. But not so if (1) the record is maintained by a local agency, and (2) disclosure of that type of record has been formally prohibited by the agency’s elected (governing) body. This will rarely be the case, however, and the typlcal result is that if the requester can establish a leak to someone else, the agency will be deemed to have waived its discretion to deny access.
Intergovernmental Exemptions. An agency does not waive its restriction rights in sharing a confidential record with another government agency, providing that the confidential treatment is transferred, in that access within the recipient agency is restricted to those with a written authorization from the agency head, and the recipient agency’s uses of the information are consistent with the law creating the confidentiality in the first instance.
Regulatory Disclosures. State agencies regulating banks, savings and loans, credit unions and corporations sometimes disclose to the regulated parties certain generally restricted information which the agency has accumulated about their operations. This type of limited sharing of information does not represent a waiver. Other agencies, however, are still subject to the general rule. If they share “confidential” information with the persons or businesses they are regulating, no matter how useful this practice may be to encourage compliance by the regulated party, they will be deemed to have waived their right to deny others’ requests for the information (Black Panther Party v. Kehoe, 42 Cal. App. 3d 645 (California Court of Appeal, 3d Dist. 1974)).
Q: Which exemptions from disclosure are most frequently used by public agencies?
A: There are six exemptions within the CPRA which appear to be the most commonly used, in part because they can arise in a wide variety of circumstances. The six are:
- Preliminary and temporary drafts, notes and memoranda
- Pending litigation documents
- Private personal information
- Investigative, security and intelligence information
- Privileged and otherwise confidential information
- The public interest balancing test
