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:
"Will,
"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
privileged."
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 question.
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.
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:
"Will,
"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
privileged."
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 question.
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.
Marsha Sutton reports on
problems with public records
requests at Del Mar Union
School District (DMUSD).
problems with public records
requests at Del Mar Union
School District (DMUSD).
| San Diego Education Report |
"Sometimes, people
who do not have the
best interest of the
community at heart are
in control of...[public
entities]."*
who do not have the
best interest of the
community at heart are
in control of...[public
entities]."*
--San Diego City Councilmember
Jim Madaffer's 2005 words about
the San Diego City Airports
Division
Jim Madaffer's 2005 words about
the San Diego City Airports
Division
CVESD Violations of Public
Records Act
Records Act
Terry Francke* suggests a per-day fine for "whatever period a public
agency denies access to a clearly public record.
agency denies access to a clearly public record.
*Terry Francke, general counsel for Californians Aware www.calaware.org
San Diego City Airports
Division
http://www.signonsandiego.c
om/news/metro/20051116-9
999-2m16means.html
Division
http://www.signonsandiego.c
om/news/metro/20051116-9
999-2m16means.html
Hiding the truth in schools
SDCOE Violations of
Public Records Act
Public Records Act
March 2006
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
the district.
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
the district.
SDCOE produced some invoices of
legal bills, but refused to provide
complete records about how much
Daniel Shinoff has been paid on
behalf of CVESD.
legal bills, but refused to provide
complete records about how much
Daniel Shinoff has been paid on
behalf of CVESD.
There are big problems in schools, and board members want to keep them
secret.
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
Lozano Smith
Parham & Rajcic
Link: List of approved
SDCOE attorneys.
[Sorry, SDCOE has broken
the link.]
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
P.C.
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.
Update:
I have learned from (former)
Grossmont Union High
School District
Superintendent Terry Ryan
that Shinoff has an unwritten
"gentlemen's agreement."
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
Lozano Smith
Parham & Rajcic
Link: List of approved
SDCOE attorneys.
[Sorry, SDCOE has broken
the link.]
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
P.C.
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.
Update:
I have learned from (former)
Grossmont Union High
School District
Superintendent Terry Ryan
that Shinoff has an unwritten
"gentlemen's agreement."
Missing SDCOE invoices
from Stutz: June,
October and Nov 2003
from Stutz: June,
October and Nov 2003
Letters to the Editor
Voice of San Diego
By Vince Hall, Kensington
Feb. 5, 2009 |
...Your relentless pursuit of public
documents from agencies like
Southeastern Economic
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
secrecy.
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
democracy itself.
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
work!
Voice of San Diego
By Vince Hall, Kensington
Feb. 5, 2009 |
...Your relentless pursuit of public
documents from agencies like
Southeastern Economic
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
secrecy.
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
democracy itself.
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
work!
Voice of San Diego
No Response on
E-Mail Request
ANDREW DONOHUE
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
today.
Some background: A wrongful
termination suit filed this
month alleges that a former
top city official was fired for
reporting inappropriate
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
allegedly contained
inappropriate language.
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
exemption.
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
protects documents
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
say.
Stay tuned. Dubick didn't give
me a precise date as to when
the Mayor's Office might
respond. I'm writing her back
right now.
No Response on
E-Mail Request
ANDREW DONOHUE
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
today.
Some background: A wrongful
termination suit filed this
month alleges that a former
top city official was fired for
reporting inappropriate
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
allegedly contained
inappropriate language.
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
exemption.
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
protects documents
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
say.
Stay tuned. Dubick didn't give
me a precise date as to when
the Mayor's Office might
respond. I'm writing her back
right now.
ACLU Sues Denver Police for Records of Internal Investigations
Related to ""Spy Files"" Controversy
June 14, 2005
FOR IMMEDIATE RELEASE
Contact: media@aclu.org
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 Amendment activities.
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...
Related to ""Spy Files"" Controversy
June 14, 2005
FOR IMMEDIATE RELEASE
Contact: media@aclu.org
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 Amendment activities.
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 Complaints
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 who understood...
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 who understood...
Bush administration 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
Interest.
(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.)
COUNSEL
Stutz, Gallagher, Artiano, Shinoff & Holtz, Daniel R. Shinoff and Jack M. Sleeth, Jr., for
Petitioner.
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.
OPINION
McINTYRE, J.-
ISSUE
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
disclosure.
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.
DISCUSSION
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
Cal.Rptr. 415].)
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.
53.)
" '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.
56.)
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 without
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."
[4] 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].) [5] 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].) [6] 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 proceedings
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].)...
[7] 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.
DISPOSITION
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
circumstances is:
"(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 other person.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(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."
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
Interest.
(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.)
COUNSEL
Stutz, Gallagher, Artiano, Shinoff & Holtz, Daniel R. Shinoff and Jack M. Sleeth, Jr., for
Petitioner.
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.
OPINION
McINTYRE, J.-
ISSUE
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
disclosure.
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.
DISCUSSION
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
Cal.Rptr. 415].)
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.
53.)
" '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.
56.)
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 without
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."
[4] 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].) [5] 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].) [6] 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 proceedings
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].)...
[7] 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.
DISPOSITION
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
circumstances is:
"(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 other person.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(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
until October.
“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.”
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
until October.
“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.”