Privacy Issues in the Community College Workplace

2. C ALIFORNIA P UBLIC R ECORDS A CT The California Public Records Act, Government Code section 6250 et seq., also requires employers to exercise caution in areas implicating employee privacy rights. In 1992 the Public Records Act was amended so that Government Code section 6252 now includes an expanded definition of local agencies covered by the Act. Non-profit organizations of local government agencies and officials that are supported solely by public funds are now encompassed within the Act’s parameters. The California Public Records Act 310 was enacted with the objective of increasing public access to government records. Like the federal Freedom of Information Act 311 upon which it was modeled, the general policy of the Act favors disclosure. 312 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.” 313 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.” 314 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. 315 In City of San Jose v. Superior Court 316 , 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.” 317 The California Supreme Court has granted review of the Court of Appeal’s decision 318 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. 319 California courts have construed the statutory exemptions narrowly in order to accomplish the general policy of disclosure. 320 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. 321 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 ©2019 (c) Liebert Cassidy Whitmore 100