Public agencies often find themselves caught between two important obligations: protecting confidential information and fulfilling legal requirements for transparency. Questions commonly arise about when—and how much—sensitive information can be redacted without running afoul of the law. This blog post addresses some of the most common redaction scenarios involving California Public Records Act (“CPRA”) requests, union requests for information (“RFIs”), and Skelly pre-disciplinary disclosures.
Public Records Act Requests
The CPRA (Gov. Code Section 7920.000 et seq.) strikes a balance between the need for privacy in certain records and the people’s interest in transparent government. The CPRA describes over a dozen categories of exempted information that a public agency need not disclose in response to a CPRA request.
Notably, the CPRA exempts from disclosure personnel, medical, or similar files if the disclosure would constitute an unwarranted invasion of personal privacy. (Gov. Code Section 7927.700.) Specifically, unless the requesting entity is a union or association that represents employees, agencies should redact employees’ home addresses, home telephone numbers, personal cellular telephone numbers, birth dates, and personal email addresses (unless used by the employee to conduct public business, or necessary to identify a person in an otherwise disclosable communication). (Gov. Code Section 7928.300.) The CPRA also exempts attorney-client privileged communications. (Gov. Code Section 7927.705.)
A record that contains some exempt information may still be subject to production. Agencies have a duty to redact or remove non-responsive portions of an otherwise-responsive record where the responsive portions may be reasonably separated. For example, the agency may redact the names of witnesses interviewed in an otherwise disclosable investigation report.
Because the CPRA defines the term, “writing” broadly to include mediums like photographs, audio recordings, or video footage, redaction may require specialized services to handle different media formats. Consider exploring services that use artificial intelligence to efficiently redact photos, video, and audio—but make sure to have a human review the final product before release.
Note that if the agency plans to release information pursuant to a CPRA request, a union or association is not entitled to meet and confer with the agency regarding the scope of the release or redactions. (Gov. Code Section 7921.005.)
Union Requests for Information
Pursuant to California labor laws, including the Meyers-Milias-Brown Act (“MMBA”), employee organizations have a right to information relevant to representing their members. This information might be broader in scope than that which is available through a CPRA request. However, courts and the Public Employment Relations Board (“PERB”) have recognized the need to balance this right against the individual privacy rights of employees mentioned in the requested documents. This balancing test generally permits agencies to redact identifying information, such as names and personal details.
In City and County of San Francisco (2020) PERB Dec. No. 2698-M, PERB found that SEIU was entitled to a copy of an investigation report that concluded an employee engaged in misconduct, as the union was representing the employee in a grievance that challenged the resulting written reprimand. PERB further held that the agency violated the MMBA by unilaterally deciding to redact seven pages of the report before it released it to SEIU, without meeting and conferring with SEIU regarding the need for redactions.
Thus, while an agency may have a basis for redacting confidential information or even withholding documents entirely in response to an RFI (e.g., attorney-client privilege might protect the entirety of an investigation report if prepared by an attorney), the agency should be prepared to discuss the scope of redactions with the requesting union if they raise an objection.
Documents Supporting Significant Discipline Under Skelly
A common concern for public agency employers is whether they can redact investigation reports and related materials that are part of disciplinary proceedings—particularly when witness employees express fear of retaliation from the subject employee. However, redacting a report can violate the subject employee’s due process rights.
Under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, an employee has the right to pre-disciplinary due process, which includes access to the materials upon which the agency is basing the discipline. This right enables the employee to meaningfully respond to the charges before discipline is imposed.
Attempting to redact or anonymize relevant information such as witness identities—i.e., labeling individuals “Witness 1,” “Witness 2,” and so on—may violate the subject employee’s rights under the Skelly process. The subject employee may argue that without knowing who made specific allegations, they are unable to challenge the credibility of the witnesses, identify potential bias or conflicts, or otherwise refute the evidence. This could lead to a claim that the Skelly process was fundamentally deficient and violated due process.
Notably, if the discipline proceeds to a subsequent appeal or administrative hearing, the agency bears the burden of proving its case against the employee. This means the agency will likely need to call the witnesses to testify to establish the facts supporting discipline, at which point anonymity is not possible.
Conclusion
When it comes to redactions, there is no one-size-fits-all rule. Public agencies should carefully evaluate the legal context—whether a PRA request, a union RFI, or providing Skelly materials— and consult with legal counsel to determine what information must be disclosed and what can be lawfully withheld.