Court Permits Production of Bargaining Materials Under California Public Records Act
On January 29, 2016, Judge Craig Griffin of the Orange County Superior Court denied a request for a temporary restraining order (“TRO”) that would have prevented the County of Orange from publicly disclosing bargaining records with an employee union. Under the California Public Records Act (“CPRA”), the documents of a public agency are generally subject to production, unless otherwise subject to an exemption justifying nondisclosure. The Court’s ruling in Association of Orange County Deputy Sheriffs v. Frank Kim et al. is a strong signal to certain public employers that documentation prepared in the course of collective bargaining may be subject to production under CPRA.
On January 18, 2016, the political news website FlashReport submitted a CPRA request to the County in which it sought disclosure of all documents related to its negotiation of labor agreements with the Association of Orange County Deputy Sheriffs (“Union”). The requested documents included all formal and informal offers and counteroffers (“bargaining records”).
The CPRA requires disclosure of all public records, with several limited exemptions. For instance, California Government Code § 6254(p) provides for nondisclosure of public records related to activities “that reveal a state agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy” related to activities under the Dills Act, State Excluded Employees Bill of Rights, and Higher Education Employer-Employee Relations Act. However, this exemption does not expressly apply to such activities under the Meyers-Milias-Brown Act (“MMBA”), which governs collective bargaining between city, county, and special district employers and employees. Without a clearly applicable specific exemption, the County intended to proceed with the disclosure the requested records.
In response to the County’s intent to produce the records, the Union attempted to obtain a temporary restraining order in the Orange County Superior Court to prevent a disclosure of the records. In this unusual “reverse-CPRA” action, the Union argued that the public interest would be better served by keeping these internal documents confidential as disclosure would undermine the bargaining process. If a public record does not qualify for one of the specific exemptions under the CPRA, Government Code § 6255 provides a “catch-all” exemption that permits public agencies to withhold disclosure of public records if it can demonstrate that “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Here, the Court was not persuaded by the argument that the general public should not have access to the documents, stating, “[t]he fact is, we have a county that’s run by the people, for better or for worse.”
The Union also argued that disclosing the bargaining records would violate the MMBA. Because the Union and the County had previously agreed to negotiation ground rules that all collective bargaining materials would remain private, the Union asserted that the disclosure of these documents would be a violation of the County’s duty to bargain in good faith, as required by the MMBA. However, the Court was not persuaded by this argument.
The Court concluded that the public would be deprived of its right to access these public records and subsequently denied the Union’s request for the TRO. The denial of a TRO suggests that courts may not be inclined to find bargaining records worthy of exemption from disclosure under the CPRA. In order to establish that it is in the public’s best interest to maintain the confidentiality of such bargaining records, public agencies should be prepared to demonstrate exceptional and compelling circumstances to warrant their nondisclosure. A decision to withhold production of bargaining records may be given greater consideration if the public agency can specify the potential negative impacts to the public resulting from disclosure, rather than general assertions that the negotiation process would be undermined if the records were produced.
*Arielle Spinner, law clerk, assisted in the preparation of this Alert.