BILL ANALYSIS Ó
AB 2843
Page 1
Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2843
(Chau) - As Amended March 18, 2016
PROPOSED CONSENT
SUBJECT: Public records: employee contact information
KEY ISSUE: should an existing public record request exemption
for the home addresses and telephone numbers for certain public
employees be extended to exempt personal cell phone numbers and
personal e-mail addresses, as well?
SYNOPSIS
This non-controversial bill seeks to update an existing
exemption to the California Public Records Act (CPRA). Existing
law exempts from disclosure under the CPRA the home addresses
and home phone numbers of state employees and employees of a
school district or county office of education, unless the
disclosure is made to a family member, an employee organization,
or to another agency or entity for a designated administrative
purpose. The apparent rationale for this exemption is that
because public employees necessarily work in the public eye,
they sometimes become the focus of the public ire, or the overly
zealous citizen-inquisitor. California courts, for example,
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have found that public employees have a substantial privacy
interest in keeping their personal contact information,
including e-mail addresses, confidential. This bill would
extend the existing exemption for home addresses and home phone
numbers to include the employee's personal cell phone number and
personal e-mail address. Work-issued cell phone numbers and
e-mail addresses would not be exempt, nor would the content of
personal cell phone or e-mail messages necessarily be exempt
from disclosure if the employee used a personal cell phone or
personal e-mail for a work-related purpose. Rather, the purpose
of the existing exemption, and for the extension proposed by
this bill, is to keep the employee's personal contact
information confidential. The author and supporters of the bill
see this bill as an attempt to "modernize" the existing
exemption, because an employee's personal contact information is
no longer restricted to a home address or its corresponding
"landline" phone number. The bill is supported by the
California Federation of Labor, SEIU California, and the Peace
Officers Research Association of California (PORAC). There is
no known opposition to this bill.
SUMMARY: Clarifies that an existing provision of the California
Public Records Act that exempts the homes addresses and home
telephone numbers of certain public employees from public
disclosure also applies to the employee's personal cell phone
number and personal e-mail address. Specifically, this bill:
1)Extends an existing provision of the California Public Records
Act that exempts the home addresses and home telephone numbers
of state employees and employees of a school district or
county office of education from public disclosure to also
exempt from the disclosure an employee's personal cellular
phone numbers and personal electronic mail addresses.
2)Makes findings, as required by the California Constitution,
that this bill's limitation on the public's right to access
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public records is necessary in order to protect the privacy
and well-being of state and local employees by limiting access
to their personal and emergency contact information.
EXISTING LAW:
1)Provides that public records are open to public inspection,
unless expressly exempted by a provision of the Public Records
Act or another statute. (Government Code Section 6250 et
seq.)
2)Provides that the home addresses and home telephone numbers of
state employees and employees of a school district or county
office of education shall not be deemed to be public records
and shall not be open to public inspection, unless the
disclosure is made to an agent or family member of the
employee; an officer or employee of another state agency,
school district, or county office of education when necessary
for the performance of official duties; to an employee
organization, as specified; or to an agent of a health benefit
plan, as specified. (Government Code Section 6254.3.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Existing law exempts from disclosure under the
California Public Records Act (CPRA) the home addresses and home
phone numbers of state employees and employees of a school
district or county office of education, unless the disclosure is
made to a family member, an employee organization or to another
agency or entity for a designated administrative purpose. This
non-controversial bill simply extends this exemption to include
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modern forms of employee contact information: personal cell
phone numbers and personal e-mail addresses. The bill would not
apply to work-issued cell phones or e-mail accounts.
California Case Law on a Public Employee's Personal Information:
As noted by SEIU in its letter supporting this bill, the
California courts interpreting the CPRA - like federal courts
interpreting the Freedom of Information Act (FOIA) - have
already begun to move in the direction of keeping a public
employee's personal contact information confidential. For
example, in Sonoma County Employee's Retirement Association v.
Superior Court (2011), a newspaper requested that the county's
pension system provide the paper with records showing the name
of each former employee receiving a pension from the county, the
former employee's age at retirement, and the amount of the
pension that the former employee received. When the pension
system refused the request, the newspaper successfully obtained
a writ of mandate from the superior court ordering the system to
turn over the information. The California Court of Appeal,
however, overturned that part of the order requiring disclosure
of the age at retirement, but upheld that part of the order that
required the pension system to turn over the names of retirees
and amounts of their pensions. In rejecting the claims of the
pension system that the retirees' privacy interests outweighed
any public interest in names and pension amounts of individual
employees, the court stressed that "our ruling will not result
in the release of home addresses, telephone numbers, or e-mail
addresses of retirees and beneficiaries." (Sonoma County
Employee's Retirement Association v. Superior Court (2011) 198
Cal. App. 986, quote at 1006; emphasis added.) The Court's
statement was only dicta, since the court was not asked to
decide whether retirees' privacy interests in home addresses,
phone numbers, and e-mail addresses sufficiently outweighed the
public interest in disclosure. Nonetheless, the court's
statement suggests at the very least that it saw e-mail
addresses as the equivalent of the home address and home phone
number. In addition, it shows that the courts are willing to
protect the contact information of all public employees - not
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just the state employees or local school employees covered by
Government Code Section 5254.3 - by citing other provisions of
the CPRA, including the so-called "catch-all" balancing test
that allows an agency to withhold information if the public
interest in non-disclosure "clearly outweighs" the public
interest in disclosure.
ARGUMENTS IN SUPPORT: According to SEIU California, AB 2843
will "modernize the statutes governing the [CPRA] by making
explicit that modern modes of communication are protected, such
as personal electronic mail addresses and personal cellular
phones." SEIU cites a number of California appellate court
decisions allegedly showing that the courts have already
interpreted existing law in the manner proposed by this bill
even though "those interpretations are not necessarily reflected
in the statute." For example, one court used the CPRA's
"catchall exemption" (where the public interest in
non-disclosure clearly outweighs the public interest in
disclosure) to conclude that disclosure of the "home addresses,
telephone numbers, or email addresses" of public employee
retirees is not required. [Citing Sonoma County Employee's
Retirement Association v. Superior Court (2011), discussed
above, and other cases finding that an employee has a
"substantial privacy interest" in his or her personal contact
information.] Finally, SEIU notes that the CPRA is modeled
after the Freedom of Information Act (FOIA) and in interpreting
the CPRA California courts sometimes look to federal courts
rulings on FOIA for guidance. The federal courts have also
found a "powerful privacy interest" in personal contact
information, including personal e-mail addresses. SEIU
believes, therefore, that "AB 2843 is a simple bill that will
align the CPRA to case law with regard to protecting public
employee personal contact information."
The California Federation of Labor supports this bill for many
of the same reasons set forth by SEIU, above, adding that
"privacy is a fundamental right in California and a fundamental
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interest recognized by the CPRA . . . This bill will ensure that
all modern forms of public employee personal contact information
remain private and protected."
Pending Related Legislation: AB 2853 (Gatto) authorizes a
public agency to post public records on its Internet website and
to direct a person requesting such a record to that website.
However, if the person making the request lacks the ability to
access or reproduce records on the website, the agency must
provide copies of any record for an appropriate fee. AB 2853
will be heard by this Committee today.
AB 2498 (Bonta) would exempt from disclosure under the CPRA the
name, home address, and images of a victim of human trafficking,
and of the victim's immediate family, as specified. As amended
in this Committee specifies that the exemption would not apply
to any family members who were perpetrators of human
trafficking. Passed out of this Committee on April 5, 2016, on
a 10-0 vote and was sent to the Assembly Committee on Privacy
and Consumer Protection.
AB 2611 (Low), as proposed to be amended, exempts from
disclosure, in response to a PRA request, audio and video
recordings that depict death or serious bodily injury in a
morbid, sensational, and offensive manner, or that show a peace
officer being killed in the line of duty when those recordings
are within law enforcement investigative files. AB 2611 will be
heard by this Committee today.
AB 1520 (Stone) amends a provision of the CPRA that exempts from
disclosure certain personal information about customers of local
utility agencies to specify that this exemption only applies to
the personal information of residential utility customers, and
by implication not to commercial, industrial, or public agency
customers. This is a two-year bill awaiting hearing in the
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Senate Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Labor Federation
PORAC
SEIU California
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334
AB 2843
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