Request for Employee Records from Parent’s Foundation for Education (K-12)

Our office has recently been contacted by a number of districts that have received identical requests (except for the name of the contact person) from an organization calling itself Parent’s Foundation for Education, seeking various categories of public records relating to their employees. The requests want the information to be provided in the form of an Excel spreadsheet.

LEGAL UPDATE

December 15, 2017

To:  Superintendents, Member School Districts (K-12)

From: Frank Zotter, Jr., Senior Associate General Counsel

Subject: Request for Employee Records from Parent’s Foundation for Education

Memo No. 41-2017

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Our office has recently been contacted by a number of districts that have received identical requests (except for the name of the contact person) from an organization calling itself Parent’s Foundation for Education, seeking various categories of public records relating to their employees. The requests want the information to be provided in the form of an Excel spreadsheet.

Districts have asked several questions about this request. I have compiled those questions below. The simplest way to provide this response seemed to be to draft this like a Frequently Asked Question page addressing some of the most common questions. This Update also includes a sample response that districts can use to reply to these requests.

1.         Do we have to respond to a request from a party outside of California?

Yes. Public entities in California are required to respond to a public records request regardless of from whom or where the request originates. We advise districts to disregard where the requesting party is located and simply respond to the request.

 

2.         Do we have to provide a response even if we do not have a record with the information requested in the format that they are asking for?

At one time, when public records were kept only as paper documents, a request could have been denied if the exact record sought did not exist as a paper document, because the Public Records Act does not require public entities to create new documents. But if information is electronic and a district itself can only get that data (at all) by giving its computers instructions about how to structure the output, then districts cannot object merely because the records are held electronically and must be produced according to a command from a human operator. Districts therefore should provide public records that are stored electronically, subject to two conditions.

First, the information does not have to be provided in a specific format (such as the Excel spreadsheet requested here).[1] If Excel is not the format in which your district maintains this data, but you are willing to provide it in that format, then you can charge this requesting party for the staff time necessary to convert it.[2] This includes the staff time necessary to produce a copy of the electronic record if their request requires that you create a program or perform some kind of data compilation or extraction beyond simply providing a copy in the format that you maintain it. If you have to convert this to Excel, for example, that would be a cost you could pass on to the requesting party.

Assuming that it will take significant staff time to provide the data in the Excel format, and before incurring any costs to do so, a district should calculate the staff time required and insist upon an up-front payment of the estimated costs of such a response.  Districts should calculate the estimated time to do the computer work, multiplied by the hourly rate of the employee or employees who will do the work. For example, suppose it would take 50 hours of staff time to do this, and an employee’s hourly rate were $36.00/hr.

You should also include a multiplier to reflect the employee(s)’ benefits. This is often around 30%-33% of the baseline hourly rate. In the example given, the employee’s normal hourly rate of $36/hr would be multiplied by .33, which would come to $48/hour.  Thus, in this example, if it would take approximately 50 hours to prepare the requested document, 50 x $48/hr = $2,400 that the district could demand as an estimated up-front cost.  If it ends up taking more time, then the agency can bill for the difference; if it ends up taking less, it should refund the difference.

If the data must be redacted to exclude confidential information, that is also a recoverable cost. The time to redact any confidential information should be factored into the estimated number of hours.

We emphasize, however, that districts do not have to provide the records in Excel unless that is the format in which they are maintained. It would be acceptable to make the records available in a different electronic format if that is the format in which they are normally kept.

3.         Which categories of records do we have to produce? Which are objectionable?

The first seven categories — the employees’ names, where they work, their job titles, and (for teachers) the grade levels, areas of instruction and certification — all seem to meet the general definition of a public record. Past court cases have held that employees’ names are not confidential, and the other information in those first seven categories is normally public information, too. Likewise, the last three categories (hire date and years of experience, plus salaries) are also public information are public information.  Districts can interpret that last category, however, as seeking only gross salary, and not “all sources of income,” as is often requested by organizations like Transparent California.

As for an employee’s work e-mail address, many districts make these e-mail addresses available on their websites (or they are available on the website of a given County Office of Education). If employees’ e-mails are already available online, then an acceptable response is to direct the requesting party to the location on a public website where that information can be found.[3]

If a district has not put its e-mail addresses online and does not want to release them, an argument can be made that providing them makes the e-mails more susceptible to spamming, and therefore lessens their usefulness as a work tool.  The objection to making them public would be based on Government Code § 6255, and such an objection is included in the sample response.

All of the other categories are objectionable. Government Code § 6254.3 specifically provides that home addresses, home telephone numbers, personal cellular telephone numbers of public employees are not public records. Nor are personal e-mail addresses public information unless the employee uses them to transact public business.

As for the request for an employee’s race, sex, or ethnicity, that information would arguably be confidential under either Govt. Code § 6254, subd. (c) or the “catch all” statute, Government Code § 6255. Both of them require that a public entity balance the “public’s right to know” against the employee’s right to privacy protected by Cal. Const. art. I, § 1.

You should object to each category of records you do not intend to provide and cite the statutes above as the basis for doing so.  The accompanying sample response letter contains such objections. You also should determine the difficulty of providing the other information in the Excel format, and if it will be expensive or time-consuming to do so, you should request the deposit discussed above.

Finally, the initial response should be made within 10 calendar days of when a district received this request. You do not have to provide any records or information along with your initial response, but instead should provide them as soon as reasonably practical. Given that the response date for this is just before winter break, districts can give an estimated response date in January, or whenever their other work will reasonably permit a response.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

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