Statement from Superintendent and Board President Regarding Compliance with Public Records Act Requests

Recently, Berkeley Unified School District (BUSD) received a request under the California Public Records Act (CPRA) from Judicial Watch for specific documents, including certain email communications between our employees. Judicial Watch describes itself as a “conservative, non-partisan educational foundation” based in Washington, D.C., that uses public record laws in furtherance of its mission. Given the nature of their request, we feel it is important to remind our community about the provisions of the CPRA as well as how we are responding to this request and why we are legally required to do so.

Under the CPRA, any member of the public may request any written document “relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” A document includes email communications. If the document relates to the public’s business – in other words, if it relates in some way to the work of the District – the CPRA requires that such a document be disclosed unless the District can identify a legal exception to doing so. For instance, there is an exception that prevents the District from disclosing most student records and most employee personnel records on privacy grounds.

California law expressly “does not allow limitations on access to a public record based upon the purpose for which the record is being requested.” As a result, court decisions have made clear that the motivation of the individual who makes a request for documents under CPRA is not a basis to reject a request, even if the request might harass the public agency or its employees.

The law is also clear that a public agency’s refusal to comply with a lawful request may result in substantial litigation costs and attorney’s fees imposed on the agency for its refusal to comply. The law states that “the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation.” The costs of this type of litigation ultimately reduce the funds available for student education.

The CPRA law is based on the premise that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” BUSD agrees with both the spirit and the letter of this premise. As a public school system, we place paramount value on openness, responsiveness, and transparency to our community.

Under the CPRA, we have a clear legal obligation to search for communications that are potentially responsive to this request, regardless of what we think of the motives of the requester. California law does not permit a public agency from preemptively seeking a declaration in court that requested records are not subject to disclosure.

Many communications within public agencies these days are in the form of emails, and public agencies use a variety of approaches to collecting emails to review in response to CPRA requests. Both the law and BUSD’s Board Policy 4040 on Employee Use of Technology (and accompanying regulations) are clear that emails exchanged through the District’s email system are public records that may be subject to disclosure if they are responsive to a CPRA request and are not exempt from disclosure. In fact, we frequently receive PRA requests that require BUSD to disclose information about our employees, including their names, salaries, and communications related to work, and as a public agency we must disclose such information. We are not compelled to turn over information that has privacy protections or is not related to the conduct of the public’s business.

The three categories of documents Judicial Watch is requesting are written communications between January 1, 2016 to September 1, 2017 that meet the following criteria:

1. “Any and all records of communications between BUSD Superintendent and any other BUSD officials and/or staff of Martin Luther Kind [sic], Jr. Middle School mentioning ‘Felarca’, ‘Antifa’, ‘By All Means Necessary’, and /or ‘BAMN.’”

2. “Any and all records of communications between and among faculty/staff members of Martin Luther King, Jr, Middle School mentioning ‘Felarca’, ‘Antifa’, ‘By All Means Necessary’, and /or ‘BAMN.’”

3. The “personnel file of Martin Luther King, Jr. Middle School teacher Yvette Felarca.”

We have heard a concern that this request seeks information regarding employees’ political affiliations. As noted above, however, the request asks solely for communications that mention certain words, and only those communications which are “related to the conduct of the public’s business,” that is, in some way related to the work of the District. We are not compelled to turn over information that is not related to the conduct of the public’s business. We will aggressively protect the legal rights of our employees in responding to this request.

There has also been the suggestion that Judicial Watch is conducting a “witch hunt” against one of our employees with the intent to intimidate and deny free speech rights or abrogate privacy. That may be, although only that organization knows its motivation. As noted previously, however, courts have made clear that the motivation of the requestor seeking public records under the CPRA is not a basis to reject a request — no matter how upsetting the request may be, or how objectionable the motivation for the request may be.

To be clear, this request has imposed a significant burden on our District. Hundreds of hours of staff time have already been spent on this request, and we are grateful to our employees for their diligence in helping us comply with the law. We know that they would much rather be focused on the work of educating our children.

We are a relatively small district, and the volume and breadth of the PRA requests we receive poses a challenge to our ability to focus on our educational mission. If there was a legal basis for ignoring burdensome requests, we would certainly use it. There is not. Moreover, rejecting PRA requests without any legal basis would expose the District to costly litigation. Any litigation against the District — including litigation that delays the District’s lawful response to a CPRA request — can result in a significant loss in time and funds that should be devoted to directly supporting our students and staff.

Donald Evans, Ed.D, Superintendent
Ty Alper, School Board President
October 27, 2017

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