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					                 INFORMATION PRACTICES
            FREQUENTLY ASKED QUESTIONS (FAQ)


California Public Records Act (PRA) / Information Practices Act
(IPA)


1.   Question: What should I do when I get a request for
     information under the California Public Records Act?

     Answer: You should immediately contact Catherine Montano in the
     ANR Office of the Controller & Business Services (OCBS). If Catherine
     is not available, you can contact Jake McGuire at OCBS. You should
     coordinate with Catherine to appropriately respond to the request.
     The initial response is due within 10 days from receiving a request, so
     you should act fast.

     If you get a verbal request, you should ask them to put it in writing so
     that we can have a copy for our files. An e-mail or handwritten
     request is ok, but our policy is not to respond to verbal requests
     (because it usually ends up in a misunderstanding of what is been
     requested). Also, the requestor does not have to cite the correct law
     (i.e. the Public Records Act), but only has to make a clear request for
     access to records.

     New changes to the PRA try to legislate a “helpful attitude” in
     responding to public records requests. We are now required to assist
     the requestor in making their request, by helping them understand
     what records might be available that would be responsive to their
     request, or to the purpose of the request. (Government Code Section
     6253.1). The requestor has the obligation to make a request for
     “identifiable” public records, meaning they have to explain what it is
     they want. On the other hand, the new law requires that we help
     them try to figure out how to craft a reasonable request for identifiable
     public records.


2.   Question: What kinds of records can legally be withheld in
     response to a request under the Public Records Act?

     Answer: There are a lot of exemptions under the PRA that allow you
     to withhold records – more than can be listed here. However, some
Maria Shanle, University Counsel
Information Practices FAQ
January, 2006


        common kinds of records that may be withheld are as follows:

                    Preliminary drafts, notes, and internal memos
                    Records related to pending litigation
                    Personal information about individuals, like personnel or
                     medical files, that is an unwarranted invasion of personal
                     privacy
                    Police records
                    Real estate appraisals and negotiation documents
                    Library circulation records
                    Attorney-client privileged records (also doctor-patient
                     privilege)
                    “Official information” received in confidence
                    “Trade Secrets” provided in confidence by outside companies
                    Records protected by other laws, including student privacy
                     laws
                    Records related to labor negotiations
                    Records that reflect the “deliberative process privilege” (i.e.
                     the records show internal recommendations made, leading up
                     to a decision, where it is important that those
                     recommendations be made in a candid and confidential
                     manner)
                    Other records that would harm the public interest if released,
                     such as information that would threaten public safety


3.      Question: Is it legal to discard documents or other evidence
        when a request is made for the information, or when you think
        a request is about to be made?

        Answer: No, it is not legal. Think about Arthur Anderson and the
        Enron documents; Anderson is in big trouble for shredding documents
        after the trouble started. While you do have the right to dispose of
        documents in the ordinary course of business, if it’s consistent with
        your policies, you do not have the right to dispose of documents after
        a request is made (even if it would otherwise be consistent with your
        disposal policies). That would be a violation of the Public Records Act.




                                         Page 2 of 7
Maria Shanle, University Counsel
Information Practices FAQ
January, 2006


4.      Question: How can I assure collaborators that the information
        I gain through my research will be held in confidence?

        Answer: You cannot provide 100% assurances of confidentiality,
        because you can never be certain that a court will not require you to
        produce records pursuant to the Public Records Act. For this reason, it
        is important that you do not promise absolute confidentiality. On the
        other hand, information received in confidence may often be withheld
        from disclosure under the “official information” privilege. (See
        Evidence Code Section 1040).

        Note that in order to rely on the “official information” privilege, the
        information must be: (1) received by a University official in
        confidence; (2) maintained in confidence (i.e. not disclosed to the
        public in the ordinary course of business); and (3) the public interest
        must be better served by withholding the information than by
        disclosing it (i.e. because if that type of information were regularly
        disclosed, it would harm the ability to collect that type of information
        and to do that type of research). In order to get the greatest
        protection, you should enter into an agreement explaining that you will
        keep the information in confidence to the greatest extent permitted by
        law.

        There may be other exemptions that would help keep information
        confidential. For example, proprietary information provided by a
        company could be protected as a “trade secret” (Evidence Code 1060),
        if the information provides a commercial advantage to the company,
        and it is information the company generally takes steps to protect
        from disclosure. There are also exemptions that might apply to
        unpublished research data, etc.


5.      Question: If a request is made under the Public Records Act for
        a list of clients enrolled in my course or involved in one of my
        programs, am I required to make that list public?

        Answer: Probably not. The fact that an individual attended a class or
        program is personal information protected by the IPA, and there is
        little or no legitimate public interest in obtaining such a list. You would
        deny the request on the basis of PRA Section 6254(c), as an
        unwarranted invasion of personal privacy.




                                      Page 3 of 7
Maria Shanle, University Counsel
Information Practices FAQ
January, 2006




6.      Question: Should I allow a member of the public to look
        through our files if they make a public records request?

        Answer: No. As a general rule, members of the public should not be
        allowed to simply look in your files, because there may be materials in
        the files that should not be disclosed (for example, attorney-client
        privileged information, personal information about individuals, etc.)
        You should work with the requestor to determine exactly what records
        they want access to, and provide access to only those records, after
        you have made certain that there is nothing in the records that should
        be withheld.


7.      Question: What can I charge for information copied and staff
        time involved in compiling any materials requested under a
        PRA request?

        Answer: Unfortunately, the University can charge only the direct cost
        of duplication, and not for staff time spent in compiling or redacting
        the material. Even if the request is very burdensome and takes a lot
        of staff time, we can’t charge any more than the direct cost of
        duplication. The ANR Administrative Handbook (Section 402(V))
        provides that copies up to 20 pages will be provided for free, as a
        courtesy, and that for more than 20 pages, the fee is ten cents per
        page. (May be somewhat different for compiling records in response
        to a subpoena.)


8.      Question: Are drafts and hand-written notes disclosable under
        the Public Records Act?

        Answer: Often, yes. Even though the PRA allows us to withhold
        “preliminary drafts, notes, or …intra-agency memoranda,” it is very
        difficult to take advantage of that exemption, because it requires that:
        (1) the draft/notes not be retained in the ordinary course of business,
        and (2) the public interest be better served by withholding the
        information than by disclosing it. This is a very difficult test to meet.
        If you want to protect drafts or notes, your best bet is to routinely
        dispose of drafts when the final document is completed (keeping in
        mind that you cannot dispose of a document after a request is made).


                                     Page 4 of 7
Maria Shanle, University Counsel
Information Practices FAQ
January, 2006




9.      Question: The University has a lot of personal information
        about me in my personnel file. What is available to others
        under the Public Records Act? What is available to me?

        Answer: Most of your personal information is considered confidential
        and is not available to other people under the PRA. There are a few
        exceptions, though, where the University concludes that it is not an
        unwarranted invasion of personal privacy to release some kinds of
        information. There is a partial list of such information in the ANR
        Administrative Handbook (Section 402(D)(1)), which states that the
        following information is available to the public: name; date of hire or
        separation; current position title; current rate of pay; organization unit
        assignment, including office address and telephone number; current
        job description; and full time or part time, and career, casual or
        probationary status. So, other people only have the right to get a
        small amount of information about you under the PRA.

        On the other hand, under the IPA, you have an almost unlimited right
        of access to information held by the University that directly relates to
        you. Essentially the only kinds of information in your file that the
        University can withhold from you are: attorney-client privileged
        information, information related to an ongoing investigation or
        grievance, the confidential source of evaluations about you,
        information related to a criminal record or investigation, or
        psychological information that would be detrimental for you to know.
        (Civil Code Section 1798.40).


10.     Question: How does the law balance my right to privacy
        against the public’s right to know?

        Answer: In general, California law recognizes two competing
        interests, the right of the public to access public records (Public
        Records Act), and the right of individuals to retain their privacy
        (Information Practices Act, California Constitution). These two
        competing interests often are in direct conflict, when a member of the
        public requests personal information about an employee.

        Specifically, the PRA allows the University to withhold information from
        the public if it meets the following exemption: “Personnel, medical, or


                                      Page 5 of 7
Maria Shanle, University Counsel
Information Practices FAQ
January, 2006


        similar files, the disclosure of which would constitute an unwarranted
        invasion of personal privacy.” (Government Code Section 6254(c)).
        As described above, there are a few categories of information that we
        have decided are public, like your title, salary, work address, etc.,
        because we do not believe that releasing that information is an
        “unwarranted invasion of personal privacy.” Most other personal
        information would be protected.


11.     Question: If part of a record can be withheld under the Public
        Records Act, does that mean I can withhold the whole record?

        Answer: No. The University can only withhold the part of the record
        that there is a legal basis for withholding, and is required to produce
        the rest of the record. The term for this is “redaction,” which means
        taking out the portion of the record that may legally be withheld. This
        is usually done by “whiting out” or “blacking out” the information to be
        withheld, and providing a copy of the record with the rest of the
        information visible, but the confidential portion blacked out.


12.     Question: Where can I get more information about public
        records and information practices?

        Answer: Some resources are as follows:

                    Government Code Section 6250 et seq. (PRA)

                    Civil Code Section 1798 et seq. (IPA)

                    Systemwide Business & Finance Bulletin RMP-8
                         http://www.ucop.edu/ucophome/policies/bfb/rmp8.html

                    ANR Administrative Handbook Section 402
                         http://oakland.ucanr.org/admin-handbook/400/402pre.html

                    Academic Personnel Manual (APM) Section 160
                         http://www.ucop.edu/acadadv/acadpers/apm/apm-160.pdf




                                           Page 6 of 7
Maria Shanle, University Counsel
Information Practices FAQ
January, 2006


                    Catherine Montano or Jake McGuire at ANR Office of the
                     Controller & Business Services (they can contact OGC if
                     needed)

                                   Jake McGuire
                                   510-987-9052
                                   jake.mcguire@ucop.edu

                                   Catherine Montano
                                   510-987-0103
                                   catherine.montano@ucop.edu




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