All posts by kblegal

Changes to PRA

In 2014, the Court of Appeals in City of San Jose v. Superior Court of Santa Clara County determined that emails and other written materials sent on employees’ personal accounts were not subject to disclosure under the Public Records Act (“PRA”).  The case was appealed to the California Supreme Court.  The Supreme Court finally issued its decision last week, reversing the Court of Appeals and holding that all non-exempt records, deemed responsive to the PRA request and located on employees’ personal devices, must be disclosed.

The Supreme Court’s decision has substantial implications for all government employers, including school districts.  However, when a PRA request is received, public agencies should now notify all employees who may have responsive records on their personal devices, and require that such records be produced.  Those employees should also be required to submit a sworn declaration indicating that all responsive records have been provided.

Even when records are held on an employee’s personal device, government employers are not obligated to release records that are “exempt” from disclosure under the PRA’s many potential exemptions.  Before disclosing requested records, agencies should allow their legal counsel to review the request to determine what, if any exemptions apply.

Kingsley Bogard is in the process of analyzing the decision to determine what, if any, additional policy changes must be implemented as a result of the Supreme Court’s ruling.  In the meantime, please feel free to contact us with any questions.

Nothing in this post is intended to provide legal advice.  If you have any questions about these cases, the Public Records Act, or any other issue, please contact Kingsley Bogard LLP.

Transgender Students

Transgender students attending California public schools will not be affected by the recent U.S. Department of Justice action rescinding the federal guidance regarding transgender students’ use of bathrooms and facilities that match their gender identity.

In May 2016, under the prior U.S. executive administration, the Department of Justice and Department of Education publicized guidance to the nation’s public schools instructing them to protect the rights of transgender students to use restrooms and locker rooms that match their gender identities.  Thereafter, in February 2017, a joint determination by the Department of Justice and Department of Education returned this issue to the state level.

With the passage of California Assembly Bill 1266, which became California Education Code, section 221.5, subdivision (f) on January 1, 2014, transgender students attending California public schools have the right to use facilities consistent with their gender identity.

As such, transgender students attending California public schools will continue to be protected by the provisions of California Education Code section 221.5(f) and will not be impacted by the recent revised federal directive.

IEP and 504 Plan

National Business Institute, Legal Workshop
Sacramento
Monday, December 5, 2016

Leaves

School Personnel Commissioners Association
Northern California
Reno, Nevada
Saturday, October 22, 2016

The Brown Act

Emery Unified School District
Saturday, September 17, 2016

504 Training

Pleasanton Unified School District
Thursday, August 11, 2016

Accidental Release of Attorney-Client Documents

Public agencies often face the unenviable task of reviewing and producing hundreds or thousands of pages in response to Public Records Act (“PRA”) requests.  Not surprisingly, records occasionally slip through the cracks and, sometimes, these documents are protected by the attorney-client privilege.

Government Code section 6254.5 states that whenever an exempt record is to be disclosed to a member of the public – includingrecords protected by the attorney-client privilege – anyexemptions are waived.  Until recently, there was a conflict in the California courts as to whether the accidental release of an attorney-client record constituted a “disclosure” under Section 6254.5 such that the privilege could no longer be claimed.

In Ardon v. City of Los Angles, the City of Los Angeles inadvertently released certain attorney-client documents in response to a PRA request.  When it discovered the release, it filed a lawsuit to recover them, but the Court held that the privilege had been waived.  The exact opposite conclusion, under the same circumstances, was reached less than a year later, in Newark Unified School District v. Superior Court.  Both cases were appealed to the California Supreme Court.

The Supreme Court upheld Newark.  In doing so, the Court determined that the “disclosure” of a record – suchthat the attorney-client privilege is waived under Government Code section 6254.5 – doesnot occur when the release is inadvertent.  As a result, inadvertent release of attorney-client privileged records does not waive the privilege, and public agencies may commence actions to recover such records.

For public agencies inundated by PRA requests, the decision is promising.  Although the case dealt only with attorney-client privileged records, its reasoning appears equally applicable to the inadvertent disclosure of other sensitive records, such as those touching on employee or student privacy.

Nothing in this post is intended to provide legal advice.  If you have any questions about these cases, the Public Records Act, or any other issue, please contact Kingsley Bogard LLP.

Kingsley Bogard LLP  |  600 Coolidge Drive, Suite 160  |  Folsom, CA 95630
(916) 932-2500 phone  |  (916) 932-2510 fax  |  admin@kblegal.us

Evaluation and Discipline of Classified Employees

Evaluation and Discipline of Classified Employees
Evaluation and Discipline of Certificated Employees
Prevention of Sexual Harassment and Abusive Conduct in the Work Place

Chico Unified School District
Monday, February 29, 2016