California Public Records Act:
Exemption for Private Personal Information
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Q: What is the CPRA exemption for private personal
information?
Q: What kinds of record does the personal privacy exemption
apply to?
Q: What kind of personal privacy protection does the CPRA
provide for government personnel files?
Q: Are there circumstances which make some private information
about government employees subject to disclosure?
Q: Does the personal privacy exemption apply to the salaries
or other compensation of government employees?
Q: What kind of background information about government
employees is public?
Q: What kind of information about government job applicants is
public?
Q: What information about a government employee's current job
status is public?
Q: What information about a government employee's misconduct
or discipline is public?
Q: Is complaint and discipline information about police and
other law enforcement officers public?
Q: How does the personal privacy exemption apply to records
concerning licensed practitioners?
Q: Are complaints about licensed practitioners public?
Q: Is general fitness-related information about licensed
practitioners public?
Q: Is fitness-related information about elected and appointed
government officers public?
Q: Are residential addresses and phone numbers public?
Q: What is the state constitutional privacy right?
Q: Apart from the personal privacy exemption in the CPRA, does
the constitutional privacy right provide an independent basis for withholding records?
Q: What is the CPRA exemption for private personal information?
A: The exemption and a related rule state:
Section 6254. Except as provided in Section 6254.7, nothing in this chapter shall be
construed to require disclosure of records that are ..: (c) Personnel, medical, or similar
files, the disclosure of which would constitute an unwarranted invasion of personal
privacy.
Section 6254.8. Every employment contract between a state or local agency and any
public official or public employee is a public record which is not subject to the
provisions of Sections 6254 and 6255.
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Q: What kinds of record does the personal privacy exemption apply
to?
A: Section 6254 (c) applies to two types of records: those pertaining to a public
agency's own employees, "personnel files" as such, and also those pertaining to
any human being about which the agency has "similar files," not just medical
records but any personally significant information.
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Q: What kind of personal privacy protection does the CPRA provide
for government personnel files?
A: Government employees have private lives and the right to have them protected. But
for them, certain aspects of daily life that would be private for those outside government
service have been determined not to be subject to privacy protection. The line between
public and private affairs for them has been drawn by reference to several examples. The
Assembly Committee on Statewide Information Policy, in preparing what became the CPRA in
1968, noting the broad definition of public records, observed, "Only purely personal
information unrelated to 'the conduct of the public's business' could be considered exempt
from this definition, i.e., the shopping list phoned from home, the letter to a public
officer from a friend which is totally devoid of reference to governmental
activities." (Cited in San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d
762 (2d Dist. 1983)).
A comparable list of private topics was taken by one court from a federal case
interpreting the privacy exemption in the Freedom of Information Act, namely "marital
status, legitimacy of children, identity of fathers of children, medical conditions,
welfare payments, alcoholic consumption, family fights, reputation and so on." (Sims
v. Central Intelligence Agency, 642 F.2d 562 (D.C. Circ. 1980), cited in Braun v.
City of Taft, 134 Cal. App. 3d 332 (California Court of Appeal, 5th Dist. 1984)).
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Q: Are there circumstances which make some private information
about government employees subject to disclosure?
A: Yes. Even arguably private information may be disclosed if the invasion would not in
the circumstances be "unwarranted". To put it otherwise, there may be a public
interest significance to normally private information which justifies its disclosure in a
given instance. As the court in Braun observed, in upholding disclosure of several
items of personal information (birthdate, phone number, social security and credit union
numbers) from a city employee's personnel file: "Just because disclosure is allowed
in this case does not mean that disclosure will be allowed in others. Each case must
undergo an individual weighing process. The weighing process involves what public interest
is served in this particular instance in not disclosing the information versus the public
interest served in disclosing the information."
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Q: Does the personal privacy exemption apply to the salaries or
other compensation of government employees?
A: No. Every public employment contract is accessible under Section 6254.8, without
qualification or limitation whatsoever. Some agencies assert fine distinctions here,
typically to avoid disclosing the actual pay or benefits of certain employees. They
maintain that the section does not apply to staff members who do not have a personalized,
express written employment "contract" -- a particular document itemizing all the
rights and obligations of employer and employee -- and thus does not apply to most
employees at all. Or they contend that it applies only to employees at will, or that it
requires the disclosure of no more than the employee's salary range - not the exact amount
currently earned.
The ultimate rationale for these grudging reactions seems to be focused on the issue of
compensation and embarrassment: that what a public employee earns is a matter of his or
her personal privacy more than a matter of legitimate public interest. The closest case
law on point is to the contrary. In San Diego Union v. City Council of San Diego
(146 Cal. App. 3d 947), the California Fourth District Court of Appeal in 1983 held that a
local government body's closed "personnel" session under the Brown Act could not
be used to set the salaries of individual non-union employees, observing:
"Salaries and other terms of compensation constitute municipal budgetary matters
of substantial public interest warranting open discussion and eventual electoral public
ratification. Public visibility breeds public awareness which in turn fosters public
activism politically and subtly encouraging the governmental entity to permit public
participation in the discussion process. It is difficult to imagine a more critical time
for public scrutiny of its governmental decision-making process than when the latter is
determining how it shall spend public funds. With ever-increasing demands on public funds
which have dwindled so drastically since the passage of Proposition 13, secrecy cannot be
condoned in budgetary determinations, including the establishment of salaries."
Since the San Diego Union case, the Brown Act has been amended to allow councils
and boards to confer on individual pay raises in closed session -- but only with their own
bargaining agents who are elsewhere negotiating with the affected employees, and in any
event any final action on compensation must take place in public session (Government Code
Section 54957.6 (a)).
The Attorney General has also twice concluded that the specific compensation of
individual employees is a matter of public record, not personal privacy. In a published
opinion, 68 Ops. Cal. Atty. Gen. 73 (1985), the conclusion was that if a public employee
is awarded a merit pay bonus, the public is entitled to know who the employee is, the
amount awarded and even the reasons for the award. In an unpublished letter opinion, the
conclusion was that in California, the exact compensation (not simply the pay range) of
each employee is a matter of public record (Letter to Brian Hill from Deputy Attorney
General Lisa Lewis Dubois, (6/17/1988)).
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Q: What kind of background information about government employees
is public?
A: With respect to public employees, the kind of information that would be included in
a resume, curriculum vitae or job application to demonstrate a person's fitness for his or
her job, in terms of education, training or work experience, is not a matter of personal
privacy. As concluded by the California Court of Appeal in Eskaton Monterey Hospital v.
Myers, 134 Cal. App. 3d 788 (3d Dist. 1982), ". . . information as to the
education, training, experience, awards, previous positions and publications of the
(employee) ... is routinely presented in both professional and social settings, is
relatively innocuous and implicates no applicable privacy or public policy
exemption."
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Q: What kind of information about government job applicants is
public?
A: Although no court has yet addressed this question, the rule in the Eskaton
case probably applies only to information about actual employees. It does not require the
disclosure of government job applications, especially if the applicants have asked for, or
applied upon assurances of, the confidential treatment normally accorded such processes. A
court might well uphold an agency's refusal to supply such information, either on the
basis of personal privacy or relying on the privilege for official information submitted
in confidence (Evidence Code Section 1040) -- unless satisfied that there was an
overriding public interest in disclosure created by the particular circumstances.
On the other hand, if the requester is willing to have job applications redacted to
remove uniquely personal identifiers so that certain non-identifying information (age,
sex, ethnicity, types and durations of previous employment, degrees earned, etc.) is
released, neither the privacy exemption nor the official information privilege should
apply.
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Q: What information about a government employee's current job
status is public?
A: In cases where some doubt arises as to whether a person is still a public employee,
or what position he or she currently occupies, or when those situations changed, a letter
or memorandum from the agency to the employee simply announcing or confirming status
changes is not a private document, the Fifth District Court of Appeal held in the
above-cited Braun case. Such communications, the court stated:
"contain no personal information. Though reclassification may be embarrassing to
an individual, in California employment contracts are public records and may not be
considered exempt. The letters (in question) were memoranda of (a public employee's)
appointment to a position and the rescission thereof; they therefore manifested his
employment contract. Because the letters regarded business transactions and contained no
personal information, the court properly ordered disclosure..."
If the letters also contain a statement of reasons for a disciplinary reassignment,
that portion would be determined by factors in the following discussion.
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Q: What information about a government employee's misconduct or
discipline is public?
A: Complaints against the conduct of public employees, if they are submitted in
confidence, are in their raw state probably protected from disclosure by the official
information privilege in Evidence Code Section 1040, to protect the interests of the
complaining party. But if they deal with serious matters, and are confirmed by the
agency's investigation, the public interest dictates disclosure.
In a case dealing with an audit report conducted by the University of California into
"acts of alleged financial irregularities" by two managerial employees, the
California Court of Appeal ordered disclosure of portions of the document, citing a case
from the California Supreme Court dealing with complaints against attorneys. The rationale
which the court borrowed from an earlier case involving attorney discipline, Chronicle
Publishing Co. v. Superior Court, 54 Cal. 2d 548 (1960), was described thus:
"The high court concluded . . . that: 'Only strong public policies weigh against
disclosure' of such matters. Such a strong public policy was found in the case or trivial
or groundless charges which often, 'no matter how guiltless the attorney might be, if
generally known, would do the attorney irreparable harm...' ... In such a situation the
attorney was to be compared with 'public officers and employees' generally, against whom
such communications 'are to be considered as highly confidential, and as records to which
the public policy would forbid confidence to be violated.' ... But 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 was based.'"
-- American Federation of State, County and Municipal Employees (AFSCME) v. Regents,
80 Cal. App. 3d 913 (1st Dist. 1978).
The court in AFSCME summarized the principle by concluding that "a proper
reconciliation of the (Public Records) Act and the constitutional right of privacy
mandates that ... the recorded complaint be of a substantial nature before access is
permitted. And patently, it is in keeping with the rationale of Chronicle Publishing
Co. and the express purpose of the Act that, where there is reasonable cause to
believe the complaint to be well founded, the right of public access to related public
access exists."
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Q: Is complaint and discipline information about police and other
law enforcement officers public?
A: No. Peace officers are a uniquely protected class. The contents of their personnel
files, including but not limited to any citizen complaints lodged against them, the
results of any internal investigations into their conduct, and the notation of any
administrative discipline imposed, are under Penal Code Section 832.7 accessible to
members of the public only by way of a discovery motion filed in a pre-existing civil case
or criminal prosecution. And unlike ordinary discovery, which is designed to provide a
litigating party with all unprivileged information held by the adversary that might even
lead to relevant evidence, the peace officer personnel discovery rules in Evidence Code
Sections 1043 and 1045 dictate that a judge pre-screen the files, to permit the disclosure
of only relevant and material evidence.
Strictly speaking, privacy is not the issue. These rules exist because before they were
adopted, too many sheriff's and police departments were reacting to subpoenas for
personnel records -- issued in connection with lawsuits alleging officer misconduct -- by
destroying the files. Rather than combat this lawlessness with prosecution for the crime
of destroying public records, the Legislature was persuaded to enact a new set of rules,
under which citizen complaints must be investigated by the employing department and
preserved for five years, but are much more difficult to obtain than personnel files of
public employees generally.
In two cases recently, the California Court of Appeal has held that these restrictive
rules also make the information exempt from disclosure under the CPRA (San Francisco
Bay Guardian v. City of Richmond, 32 Cal. App. 4th 1430 (1st Dist. 1995); Press-Enterprise
v. City of Hemet, 37 Cal. App. 4th 1411 (4th Dist. 1995)). The officers' files are
accessible to a grand jury, district attorney or the Attorney General's office without the
discovery barrier, but these agencies seldom consider a criminal investigation when, as is
typical, the officer's own department does not seek it.
The employing agency is permitted to compile and publish summary statistics about
complaints and their disposition -- but not required to do so. Complainants themselves are
entitled to a copy of their complaints, and to be informed in general terms of the
disposition, but have no right to know the factual findings of an internal investigation,
or to learn of other complaints filed against the same officer.
The California Court of Appeal has even ruled that normally accessible arrest reports
cannot be disclosed unless they concern current events -- because to allow the public to
review arrest information over a longer period of time might disclose a pattern of suspect
conduct by specific arresting officers, and thus undercut some of the absolute secrecy as
to peace officer performance (County of Los Angeles v. Superior Court, 18 Cal. App.
4th 599 (2d Dist. 1993)).
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Q: How does the personal privacy exemption apply to records
concerning licensed practitioners?
A: A second category of persons about whom the government maintains considerable
personally significant information consists of those who apply for and obtain licenses or
permits to conduct a professional practice, business, trade or other occupation. Records
of this category reveal information about individuals ranging from lawyers to doctors to
daycare center operators.
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Q: Are complaints about licensed practitioners public?
A: For the same reasons as apply to complaints about public employee performance, those
concerning licensees which are not yet verified are typically if not universally treated
as confidential by the licensing agencies. Disclosure of a bogus or otherwise unfounded
complaint would needlessly defame the subject (see language from Chronicle Publishing
Co. above), and premature disclosure of even a well-founded complaint might be
inconsistent with the policy underlying the "official information" privilege in
Evidence Code Section 1040, namely that often the government's investigative powers would
be crippled if it could not assure informants of even temporary confidentiality.
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Q: Is general fitness-related information about licensed
practitioners public?
A: Probably. A lengthy Attorney General's opinion was issued two years after passage of
the CPRA, analyzing the new law's requirements -- and the privacy-related exemptions in
particular -- in the context of the personnel and other files of the Board of Pilot
Commissioners for San Francisco Bay. With respect to the application and personnnel files
used for documenting the fitness of persons for harbor pilots' licenses, the Attorney
General concluded that the "'unwarranted invasion of personal privacy' referred to in
subsection (c) of section 6254 would occur ... when information is released which bore
little or no relevance to the question of fitness for, or the performance of, official
duties." (53 Ops. Cal. Atty. Gen. 136 (1970)).
Fifteen years later that view was echoed in an opinion interpreting the Act's privacy
exemption in the light of the federal courts' view of the parallel exemption in the
Freedom of Information Act: "The critical question is whether the information
associates the person with the business of the public agency or with an aspect of the
individual's personal life" (68 Ops. Cal. Atty. Gen. 73 (1985).
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Q: Is fitness-related information about elected and appointed
government officers public?
A: Yes. Occasionally an agency will assert the privacy exemption to withhold
information about elected or appointed governmental officials. While these individuals do
not surrender all or perhaps even most of their privacy rights because of their public
roles, it appears well settled that information directly bearing on their qualification
for public office, or the discharge of their public duties, is in no sense private. Were
it otherwise, for example, the rules requiring disclosure of their personal financial
interests under the Political Reform Act, in place since 1974, would have been attackable
as violations of the California Constitutional right of privacy (see below).
On the contrary, the same authorities noted above with respect to information about
public employees or licensees would all the more pointedly uphold disclosure of officially
significant information about elective and appointive officials. Thus, for example, the
occasional refusal to disclose information submitted by private persons who are applying
for appointments to public office -- on governmental boards or commissions --- would not
be justified to the extent that the information requested relates to their qualifications
for the position.
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Q: Are residential addresses and phone numbers public?
A: Overall, the home addresses and phone numbers of individuals are probably not exempt
from disclosures as private information under Section 6254 (c) without a showing of
special concern for confidentiality on the one hand, and a correspondingly low public
interest in disclosure on the other. This conclusion is supported by the fact that the
Legislature has made home address (and occasionally phone number) information confidential
in a number of other specifically defined contexts, including records of the Department of
Motor Vehicles (Vehicle Code Section 1808.21) and records of the county registrar of
voters (Government Code Section 6254.4). There would be no need for such specific
restrictions if the Legislature deemed the information to be private with respect to all
files held by all agencies for all purposes.
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Q: What is the state constitutional privacy right?
A: The California Constitution has its own protection for personal privacy which is
sometimes cited, along with the Public Records Act's privacy exemption, as a basis for
withholding personal information from disclosure. The right was elevated to constitutional
status by a statewide ballot amendment in 1972 which added a single last word to the
existing Article I, Section 1: "All people are by nature free and independent and
have inalienable rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and obtaining safety,
happiness, and privacy."
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Q: Apart from the personal privacy exemption in the CPRA, does
the constitutional privacy right provide an independent basis for withholding records?
A: Yes, in the sense that it raises the stakes at risk in a wrong judgment call by the
agency. It allows the subject of a record which is improperly disclosed in violation of
his or her privacy rights to sue the agency for damages, even if the disclosure does not
result in any substantial publicity, as in Porten v. University of San Francisco,
64 Cal. App. 3d 825 (California Court of Appeal, 1st Dist. 1976). In White v. Davis,
13 Cal. 3d 757 (1975), the California Supreme Court stated that one of the
"mischiefs" to which the constitutional privacy right is addressed is "the
improper use of information properly obtained for a specific purpose, for example, the use
of it for another purpose or the disclosure of it to some third party..."
Despite the breadth of the latter notion, the courts have so far not found any items of
information to be disclosable under the CPRA but not disclosable because of some more
weighty kind or degree of privacy protection under the constitutional provision. In fact,
courts are likely to use the same public and private interest factors and the same
weighing processes, treating the exemption under the Act and the positive protection under
the Constitution as essentially interchangeable (see American Federation of State,
County and Municipal Employees v. Regents, 80 Cal. App. 3d 913 (1st Dist. 1978)). A
record which does not qualify for the protection of the former is unlikely to be held
private under the latter.
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