BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2843 (Chau)
Version: June 13, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Public records: employee contact information
DESCRIPTION
Existing law exempts from disclosure under the California Public
Records Act (CPRA) the home addresses and home telephone 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 bill would extend
this exemption to include personal cellular telephone numbers,
personal electronic mail addresses, and birth dates.
Existing law additionally exempts from public inspection
specified information regarding persons paid by the state to
provide in-home supportive services, but requires copies of
names, addresses, and telephone numbers of those persons to be
made available to an exclusive bargaining agent and to any labor
organization seeking representation rights. This bill would
amend this disclosure to include personal cellular telephone
numbers, personal electronic mail addresses, and birth dates.
BACKGROUND
The California Public Records Act (CPRA) governs the disclosure
of information collected and maintained by public agencies.
Generally, all public records are accessible to the public upon
request, unless the record requested is exempt from public
disclosure. (Gov. Code Sec. 6254 et seq.) There are 30 general
categories of documents or information that are exempt from
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disclosure, essentially due to the character of the information,
and unless it is shown that the public's interest in disclosure
outweighs the public's interest in non-disclosure of the
information, the exempt information may be withheld by the
public agency with custody of the information.
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. This exemption is necessary to protect
the privacy of these employees, who necessarily work with the
public and may be subject to harassment.
Seeking to ensure that the privacy of employees is protected,
this bill would extend the existing exemption from the CPRA for
home addresses and home telephone numbers of government
employees to include the employee's personal cellular phone
numbers, personal electronic mail addresses, and birthdates.
This bill would also add this contact information to the
information exclusive bargaining agents are able to receive for
the purposes of employee organizing, representation, and
assistance activities of the labor organization, as specified.
CHANGES TO EXISTING LAW
1.Existing law , the California Constitution, declares the
people's right to transparency in government. ("The people
have the right of access to information concerning the conduct
of the people's business, and therefore, the meetings of
public bodies and the writings of public officials and
agencies shall be open to public scrutiny....") (Cal. Const.,
art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA),
governs the disclosure of information collected and maintained
by public agencies. (Gov. Code Sec. 6250 et seq.) Generally,
all public records are accessible to the public upon request,
unless the record requested is exempt from public disclosure.
(Gov. Code Sec. 6254.) There are 30 general categories of
documents or information that are exempt from disclosure,
essentially due to the character of the information, and
unless it is shown that the public's interest in disclosure
outweighs the public's interest in non-disclosure of the
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information, the exempt information may be withheld by the
public agency with custody of the information.
Existing law 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. (Gov. Code Sec. 6254.3.)
This bill would add personal cellular phone numbers, personal
electronic mail addresses, and birthdates to the above
provision.
2.Existing law protects the information regarding persons paid
by the state to provide in-home supportive services, except
names, address and telephone numbers as requested by an
exclusive bargaining agent and to any labor organization for
employee organizing, representation, and assistance activities
of the labor organization. (Gov. Code Sec. 6253.2.)
This bill would add personal cellular phone numbers, personal
electronic mail addresses, and birthdates to the above
provision.
3.This bill would make findings, as required by the California
Constitution, that this bill's limitation on the public's
right to access 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.
COMMENT
1.Stated need for the bill
According to the author:
The current statute governing the California Public Records
Act (CPRA) is inconsistent and outdated with regard to
protecting public employee privacy. While the current statute
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explicitly protects state and school district employee home
addresses and home telephone numbers from disclosure, as it
would constitute an "unwarranted invasion of personal
privacy," it does not included other current means of
communication, such as personal emails and cellular phones.
AB 2843 simply modernizes the CPRA to reflect modern modes of
contact and communications, such as personal emails and
personal cellular phones.
2.Controversy over government employee use of personal
electronic mail account for official business
This bill would exempt from disclosure under the California
Public Records Act (CPRA) the electronic mail addresses of state
employees, and school district or county office of education
employees.
In the past, this Committee has raised concerns about bills
which interfere with pending litigation. The general concern is
that any such interference could result in a direct financial
windfall to a private party, prevent a court from deciding an
action based upon the laws in place at the time the cause of
action accrued, or create a situation where the Legislative
branch is used to circumvent the discretion and independence of
the Judicial branch.
The particular issue of government employees using personal
electronic mail addresses for government business is currently
before the California Supreme Court (See City of San Jose v.
Superior Court of California, 2014 CA S. Ct. Briefs Lexis 3005
Cal. Nov. 21, 2014, determining "whether written communications
about the public's business, sent or received by public
officials and employees using personal equipment, such as
personal electronic devices or personal email and texting
accounts, are "public records" within the meaning of the
California Public Records Act") In response to the Committee's
concerns about the proposed interference with pending
litigation, the author has agreed to the following amendment
which would remove the protections for personal electronic mail
addresses from the bill.
Author's amendments:
1) Strike "personal electronic mail address" from the
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bill.
2) On page 5, in line 22, after the second comma insert
"and personal"
1.Updating privacy protections to reflect modern technology
As noted by SEIU in its letter of support, the California courts
interpreting the CPRA have begun to acknowledge that public
employees have a right to keep their 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 the 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. 4th 986,
quote at 1006; emphasis added.) While only dicta, the court's
statement nonetheless suggests at the very least that it saw
electronic mail addresses as the equivalent of the home address
and home phone number.
This bill would extend codify these protections in statute,
thereby protecting government employees personal cellular phone
information and birthdates, which could be used as an
identifier.
2.Adds personal contact information that an exclusive bargaining
agent may request
Existing law authorizes an exclusive bargaining agent to request
the names, telephone numbers, and addresses of paid by the state
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to provide in-home supportive services for the purpose of
employee organizing, representation, and assistance activities
of the labor organization. This bill would additionally allow
an exclusive bargaining agent to request the cellular telephone
number, personal electronic mail address, and birthdate of
persons hired by the state to provide in-home supportive
services.
The author writes "AB 2843 also makes a corresponding change to
the portion of CPRA concerning provision of contact information
for In-Home Supportive Services (IHSS) workers to exclusive
bargaining agents and labor organizations seeking representation
rights. Adding these modern forms of communication furthers the
public policy of encouraging communication between IHSS workers
and their representatives."
Author's technical amendments:
1) On page 3, in line 4, after the first comma insert "and"
2) On page 3, in lines 4 and 5, strike out ", personal
electronic mail addresses, and birth dates"
3) On page 4, in line 4, after the first comma insert "and"
4) On page 4, in lines 4 and 5, strike out ", personal
electronic mail addresses, and birth dates"
Support : California Labor Federation; PORAC; SEIU California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
AB 2498 (Bonta) This bill would exempt the names, addresses, and
images of victims of human trafficking and their immediate
family, as specified, from disclosure pursuant to the California
Public Records Act (CPRA), and make similar changes in the Penal
Code.
AB 2853 (Gatto) would authorize a public agency to post public
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records on its Internet Web site and to direct a person
requesting such a record to that Web site, as specified.
AB 2611 (Low), would exempt from disclosure pursuant to the
CPRA, 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 1520 (Stone) would amend 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.
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Appropriations Committee (Ayes 19, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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