In With The New – Part Four
BBK’s New Law Guidance for a Well-Informed Start to 2023
In Part Four of our “In With the New” series, Best Best & Krieger LLP’s Advanced Records Center (ARC) team covers important new legislation and case law related to the disclosure of records, reporting requirements, The California Public Records Act (CPRA) and social media. Below, you will find takeaways and analyses of the following: AB 1475, AB 157, AB 2280, AB 2647, AB 2761, AB 2791, SB 938, SB 1202, Essick v. Sonoma, Riskin v. Downtown Los Angeles Property Owners Association, Rittiman v. Public Utilities and Garnier v. O’Connor-Ratcliffe.
DISCLOSURE OF RECORDS
California Infrastructure and Economic Development Bank
AB 157 exempts from disclosure specific information and records of the California Infrastructure and Economic Development Bank (IBank). The IBank was created in 1994 to finance public infrastructure and has broad authority to issue tax-exempt and taxable revenue bonds and provide financing to public agencies. Currently, the CPRA provides exemptions for specific types of records used and retained by the IBank, such as proprietary due diligence materials. AB 157 amends this exemption so that it applies solely to records related to the administration of the Climate Catalyst Revolving Loan Fund Act of 2020, the Venture Capital Program, and the financing of economic development facilities and public development facilities under certain circumstances.
AB 2280 adds Section 7927.425 the PRA and creates the California Voluntary Compliance Program (CVCP). Historically, California automatically assessed an annual 12% interest on past-due property without an option for waiver of applicable interest. Now, the state controller can waive interest for past due properties reported by unclaimed property holders that voluntarily enroll, are accepted, and successfully complete the CVCP. The controller can receive more than 300,000 claims annually from possible owners of unclaimed property.
As part of the claims process, claimants provide a significant number of documents containing personal information relating to themselves or their relatives that would normally be kept confidential by individuals, including driver’s licenses, Social Security cards, bank account statements, wills, trusts and other similar documents. Therefore, AB 2280 creates an exemption for any records obtained by the controller and third-party auditors during the course of administering the CVCP, citing the fact that such disclosure may discourage owners from claiming property held by the controller. This exemption applies to statements related to personal worth or personal financial data, as well as personal information under Civil Code section 1798.3(a) until the controller has paid the owner the property in full.
Writings Related to Agenda Items
AB 2647 modifies the disclosure of public records relating to the agenda items under the requirements of the Brown Act. The bill goes into effect on January 1, 2023.
Under the current Brown Act, specifically Government Code section 54957.5, writings related to an agenda item that are distributed to a majority of the members of a legislative body less than 72 hours before the meeting must be made available for public inspection at the time the writing was distributed. A local agency must make the writing available for public inspection at a public office or location designated for that purpose, along with the address.
However, AB 2647 provides an alternative: Instead, an agency may post materials on the agency’s website. If the agency chooses to do the alternative, it must meet all of the following requirements:
- An initial staff report or similar document containing an executive summary and the staff recommendation, if any, relating to that agenda item is made available for public inspection at the designated office or location at least 72 hours before the meeting.
- The agency immediately posts the writing on its website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting.
- The agency lists the web address of the agency’s internet website on the agendas for all meetings of the legislative body of that agency.
- The agency makes physical copies available for public inspection, beginning the next regular business hours for the local agency, at the designated office or location. This requirement is satisfied only if the next regular business hours of the local agency commence at least 24 hours before that meeting.
The bill does not change the Brown Act’s requirement that writings distributed during a public meeting must be available for public inspection at the public meeting if prepared by the agency or a member of its legislative body, or after the meeting if prepared by some other person. The writings must be made available in appropriate alternative formats upon request by a person with a disability.
Under Government Code section 12525, if a person dies while in the custody of a law enforcement agency or a state or local correctional facility, the law enforcement agency or the agency in charge of the correctional facility must make a report to the attorney general within 10 days of the death and must include all facts in the agency’s possession regarding the death. These reports are defined as public records open to public inspection.
Additionally, the agency with jurisdiction over the state or local correctional facility with custodial responsibility over the person must, within 10 days of the date of death, post the following information on its website:
- The full name of the agency with custodial responsibility
- The county where the death occurred
- The facility, and location within that facility, where the death occurred
- The race, gender, and age of the decedent
- The date on which the death occurred
- The custodial status of the decedent (e.g., whether they were awaiting arraignment, awaiting trial or incarcerated)
- The manner and means of death
If the agency has been unable to notify the next of kin first, the agency has an additional 10 days to do so before the information must be posted publicly. If any of the posted information changes, then the agency must update the posting within 30 days.
CALIFORNIA PUBLIC RECORDS ACT
Sheriffs: Additional CPRA Exemption
Under current law, writs, notices or other process issued by superior courts in civil actions or proceedings can be served by any duly qualified and acting marshal or sheriff of any county in the state. AB 2791 adds Government Code section 7927.430 to the CPRA, which exempts from disclosure a judicial council form and the information contained within the form provided to the marshal or sheriff for the purpose of service of process.
The Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000
The Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (CKH Act) allows for exclusive authority and procedure for the initiation, conduct and completion of changes of organization and reorganization for cities and districts, except as specified. Each county has a local agency formation commission (commission) that oversees this and allows a commission to dissolve an inactive district under specified conditions.
Among other laws and provisions, SB 938 allows for a commission to initiate a proposal to dissolve a district if that commission approves, adopts or accepts a finding based on a preponderance of evidence that the district has one or more enduring service provision deficiencies, the district has shown willful neglect by failing to consistently adhere to the CPRA or spent public funds in an unlawful or reckless manner.
SB 938 requires the commission to adopt a resolution of intent to initiate the dissolution and provide at least a 12-month remediation period where the district can work towards remedying the deficiencies. At the conclusion of the remediation period, if the district has not remedied the deficiencies, the commission may make a resolution to dissolve the district. If the district has remedied the deficiencies, the commission shall rescind the resolution of intent to dissolve the district.
Business Entities: Secretary of State: Document Filings
Under the Commercial and Industrial Common Interest Development Act, every association must submit to the secretary of state specified information concerning the association and development that it manages. Previously, upon written request, the secretary of state was required to make the name, address and either the daytime telephone number or email address of the association’s onsite office or managing agent available only for governmental purposes and only to member of the Legislature and the Business, Consumer Services and Housing Agency. SB 1202 removes this provision and provides that it is subject to public inspection under the CPRA.
Sections 13665(a) and (b) were added to the Penal Code through AB 1475, which was signed into law on July 23, 2021, and took effect on Jan. 1, 2022. The bill prohibits a police department or sheriff's office from sharing mugshots on social media (i.e., Facebook, Twitter, Instagram, Nextdoor, etc.) when the person in the mugshot is suspected of committing a nonviolent offense.
When there is a low risk to public safety, the Legislature found that publishing a mugshot was detrimental to the right to a fair trial because it made an assumption that the person was guilty and, thus, could potentially violate privacy rights of Californians without a proportionate benefit to public safety.
Section 13665(a) states that the police department is prohibited from publishing mugshots of a person arrested on the suspicion of committing a nonviolent crime, except on social media in the following instances:
(1) A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat and releasing will assist in locating or apprehending the suspect or reducing or eliminating the threat.
(2) A judge orders the release of the suspect’s image based on a finding that the release is in furtherance of a legitimate law enforcement interest.
(3) There is an exigent circumstance that necessitates the furtherance of an urgent and legitimate law enforcement interest.
Under Section 13665(b)(1) of the Penal Code, a police department or sheriff’s office that shares a booking photo of an individual arrested for the suspected commission of a nonviolent crime on social media shall remove the booking photo from its social media page within 14 days, upon the request of the person in the mugshot or the person’s representative, unless any of the circumstances described above exist.
Additionally, under Section 13665(b)(2) of the Penal Code, the Legislature provided protections to individuals after their matter has been adjudicated. A police department or sheriff’s office that shares, on social media, a person’s mugshot that is arrested for the suspected commission of a crime in Penal Code Section 667.5(c) shall remove the mugshot from its social media page within 14 days, upon the request of the individual who is the subject of the social media post or the individual’s representative, if the individual or their representative demonstrates any of the following:
- The individual's record has been sealed, the individual's conviction has been dismissed, expunged, pardoned, or eradicated pursuant to law
- The individual has been issued a certificate of rehabilitation
- The individual is found not guilty of committing the crime for which they were arrested
- The individual was ultimately not charged with the crime or the charges were dismissed
Under this section, “non-violent crimes” is any crime not listed in Penal Code Section 667.5(c). “Social Media” is the same meaning under Penal Code Section 632.01, except it does not include an internet website or an electronic data system developed and administered by the police department or sheriff’s office.
NEW CASE LAW
Essick v. Sonoma (2022) 81 Cal.App.5th 941
An elected county sheriff is not a county employee for purposes of the exemptions for personnel or peace officer records.
Mark Essick (Essick), an elected county sheriff, had a complaint lodged against him on the basis of harassment. The County of Sonoma (County) hired an independent investigator to conduct an investigation and submit a written report of their findings. The Board of Supervisors (Board) drafted a letter, called the “Formal Notice of Outcome of Investigation,” that deemed Essick’s behavior willfully disregarded his role as the sheriff and demonstrated a lack of professionalism. Furthermore, it stated that the report and admonishment would be placed in the investigatory record along with the final investigative report. A local newspaper filed a request under the CPRA for release of the complaint, the report and other related documents.
Essick filed a reverse CPRA action and sought a preliminary injunction to bar the release of the public records on the basis that the records were personnel records and investigative reports of a peace officer which are protected from disclosure under Penal Code section 832.7.The trial court denied the request.
Essick appealed, but the Court of Appeal affirmed, holding that the County was not required to keep the report confidential. Ruling that the report had to concern a county employee, the court reasoned that Essick, an elected county sheriff, was not an employee for these purposes. The court reasoned that the Essick could not establish he was a county employee because a county sheriff is a public official elected by the people. His responsibility is to the people and not anyone else in the Board or to the County government. When the Board retained the investigator to conduct the report on Essick, the Board was fulfilling its statutory duty to supervise the conduct of all county officers. However, the Board lacks the authority to either appoint or terminate the county sheriff.
Additionally, Essick argued that, pursuant to Government Code section 25303, the Board had a duty to supervise the official conduct of all county officers, “particularly insofar as the functions and duties of such county officers…relate to the assessing, collecting, safekeeping, management, or disbursement of public funds.” The Court rejected this argument, finding that there is no employer-employee relationship between the Board and the county sheriff. The Court reasoned that the Board has “oversight responsibility,” but lacks authority to direct how the sheriff performs official duties.
Although the Board issued an admonishment of Essick for his behavior, the court reasoned that this was not a written reprimand constituting “punitive action” within the meaning of POBRA, because Essick faced no professional consequences for this behavior or in the face of the admonishment. The court reasoned that any statements from the Board regarding Essick’s conduct, individually or collectively, were expressions of the Board’s own free speech rights and did not amount to discipline.
Riskin v. Downtown Los Angeles Property Owners Association (2022) 76 Cal.App.5th 438
A trial court may exercise its discretion not to award attorney fees in CPRA cases where a petitioner has only achieved minimal or insignificant results
Adrian Riskin, a self-described “open records activist,” used public records requests to investigate and understand the activities of business improvement districts (BID), Los Angeles city government, and the relationship between the two. He submitted three public records requests to the Downtown Los Angeles Property Owners Association (Association), a BID subject to the CPRA, for communications between the Association and other BIDs in the area, and communications from specific board members and BIDs.
The Association produced all responsive documents not exempted from disclosure in response to the three requests. Riskin alleged that there were more responsive records, but the Association responded that it had produced all responsive records that were not otherwise exempt. Following unsuccessful attempts to resolve Riskin’s contentions, Riskin filed a verified petition for writ of mandate/complaint for declaratory relief under the CPRA.
Riskin sought an order to compel the Association to produce documents on the basis that the Association wrongfully withheld under the deliberative process privilege and the Association failed to conduct a reasonable search.
The trial court denied the declaratory relief, but ordered the Association to disclose an exhibit consisting of five pages containing two email strings of approximately 20 sentences in total. The court explained that the exhibit contained some information protected under the deliberative process privilege and some not.
Riskin moved for an award of attorney’s fees and costs under Government Code section 6259(d). The Association opposed the motion asserting that the document was minimal or insignificant and the trial court had discretion to deny attorney fees. The trial court recognized “[c]ircumstances could arise under which a plaintiff obtains documents, as a result of a lawsuit, that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.” (Los Angeles Times v. Alameda Corridor Transp. Authority, (2001) 88 Cal.App.4th 1381, 1391.)) Nevertheless, the trial court still awarded Riskin attorney’s fees.
The appellate court disagreed. The appellate court looked at the Los Angeles Times case, where the court articulated a minimal or insignificant standard, applied it to the specific facts presented, and ultimately reversed the trial court order denying fees. In their briefs, Riskin and the Association analyzed whether the minimal or insignificant standard applied in Los Angeles Times was dicta. However, the appellate court was not concerned with whether the minimal or insignificant standard was dicta, but stated that it was adopted language used in previous cases and that no case had, yet, overturned the standard. Thus, it is up to the court to decide whether the documents that plaintiff obtains from the defendant, as a result of a lawsuit, are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.
The court ruled that the trial court erred in concluding it did not have discretion to deny fees to a requester who obtained only partial relief under the CPRA pursuant to the applicable minimal or insignificant standard.
Rittiman v. Public Utilities (2022) 80 Cal.App.5th 1130
An agency’s administrative process that state and local agencies adopt to handle public records requests must comply with the language and purpose of the Public Records Act.
In November 2020, petitioner Brandon Rittiman made four requests pursuant to the CPRA seeking “all communications” between California Public Utilities Commission (CPUC) President Marybel Batjer (Batjer) and/or her executive staff and members of the governor’s staff since the date of Batjer’s appointment in mid-August 2019. The CPUC determined and notified Rittiman that the records being sought were exempt under the governor’s correspondence exemption and the deliberative process privilege. Rittiman appealed through the CPUC’s internal appeal process. Before the CPUC responded to the issues raised by the appeal, Rittiman filed a writ of mandamus pursuant to the CPRA.
Rittiman’s writ raised three issues. First, whether he was required to fully exhaust the administrative remedies set forth in the CPUC’s internal appeal process. In this regard, the court held that, to the extent that the CPUC’s rehearing process was at odds with the CPRA, the language of the CPRA would govern.
Second, Rittiman recognized that the CPUC eventually denied his internal appeal, and he raised the issue of whether the CPUC’s action on his administrative appeal rendered the writ proceeding moot. The court held that the the CPUC’s denial of the administrative appeal did not moot the issues in the petition because Rittiman sought a writ compelling the commission to immediately disclose the requested records, not a writ compelling the CPUC to act on his administrative appeal.
Third, Rittiman raised whether the CPUC properly denied his CPRA requests on the basis of the governor’s correspondence exemption. The governor’s correspondence exemption exempts from disclosure “[c]orrespondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor's Legal Affairs Secretary.” Rittiman argued the exemption is limited to correspondence sent to the governor’s office by correspondents outside of government, but the court found that no California court has held the governor’s correspondence exemptions are limited to private party correspondence.
So, ultimately, while the court ruled that Rittiman had a right to bring the action, the CPUC’s claim of the governor’s correspondence exemption applied to the PRA request and was sustained by the court. Hence, the records were exempt from disclosure.
Garnier v. O’Connor-Ratcliffe (2022) 41 F.4th 1158
Public officials may violate a constituent’s First Amendment rights by blocking certain constituents’ comments on a public social media page related to the public officials’ duties.
This case presented an issue of first impression in the Ninth Circuit: whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.
In Garnier, two members of the Poway Unified School District Board of Trustees (PUSD), Michelle O’Connor-Ratcliff and T.J Zane (Trustees), had public Facebook and Twitter pages. The Trustees used these as their public social media pages (pages) to inform constituents about information relating to PUSD and to communicate with the public. The Trustees never established rules of etiquette or decorum for these interactions with the public.
Kimberly and Christopher Garnier (Garniers) were parents of children in the school district who had left repetitive comments criticizing the Trustees on their public social media pages. The Trustees deleted or hid almost all of Garniers’ comments related to PUSD for a period of time, but eventually blocked Garniers from posting on the Trustees’ pages. Later, the Trustees began using word filters to prohibit all verbal comments on their pages, but allowed “likes” or non-verbal “reactions” from the public on posts.
The Garniers sued the Trustees on the grounds that the Trustees violated the Garniers’ First Amendment rights by blocking them, arguing that the pages were a public forum, and seeking declaratory and injunctive relief as well as damages. Trustees claimed that their actions were acceptable because it was based on a narrowly tailored restriction.
Immediately, through a summary judgment motion, the lower court granted the Trustees qualified immunity as to the Garniers’ damages claims. At trial, the lower court found that the Trustees’ pages were a public forum and that the Trustees acted under the color of state law when blocking the Garniers. The lower court also ruled that the blocking was not moot because the Trustees could block the Garniers again. Moreover, the lower court found that the blocking was constitutional because it was content neutral and intended to enforce an unwritten rule of decorum on their pages. However, the court ruled that the blocking indefinitely was not narrowly tailored to the prevention of repetitive comments on the Trustees’ pages. Trustees appealed the lower court’s decision to the Ninth Circuit, and the Garniers cross-appealed the judgment in regards to the qualified immunity decision related to damages.
The Ninth Circuit affirmed the lower court decision and held (1) that the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties; (2) that the restrictions imposed on the Garniers’ expression were invalid because they were not appropriately tailored to serve a significant governmental interest; and, therefore, (3) that the Trustees violated plaintiffs’ First Amendment rights. In holding that the Trustees violated the First Amendment public fora criteria of a time, place, or manner restriction, the Ninth Circuit found that the Trustees’ decision to block plaintiffs burdened substantially more speech than was necessary – even if the Garniers’ comments did interfere with the Trustees’ interests in facilitating discussion on their social media pages.
The Ninth Circuit also affirmed the lower court’s qualified immunity, finding that it was not clearly established that the Garniers had a First Amendment right to post comments on a public official’s Facebook or Twitter page at the time that the blocking happened in 2017. In the five years since, there have several district court cases concerning a government official’s decision to block a member of the public from their governmental social media accounts, and there has been quite a variation in those circuit decisions. As such, the Ninth Circuit found there was no “clearly established” constitutional right at the time of the blocking, so the Trustees were rightfully afforded qualified immunity. (Ashcroft v. al-Kidd (2011) 563 U.S. 731, 735.)
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