Elected Officials Entitled to Some, Not All, Public Agency Records – Access Depends on if Record Request is from “Elected Official” or “Member of the Public”

By Christine N. Wood, Director of PRA Services And E-Discovery Counsel, Best Best & Krieger LLP

Originally published on January 19, 2021. Reprinted with permission from Best Best & Krieger LLP.

As local public agencies welcome newly elected officials, it can be unclear whether the newcomers are entitled to unfettered access to all agency documents or if some records remain off-limits. This determination may be informed by whether the official is seeking the record as an elected official or as a member of the public under the California Public Records Act.

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Elected officials have greater access to the agency’s records than a member of the public when acting as a body. To participate in closed sessions, the elected official may be given records related to real estate negotiations or litigation strategy. The official may also be privy to attorney-client privileged communications between the agency’s attorneys and staff.

The official may also be able to review documents that would otherwise be privileged under the CPRA, such as records protected by the deliberative process privilege or police reports. However, there are clearly some limitations to an official’s access to records. For example, improper review of personnel records could open the agency up to an invasion of privacy claim by the employee.

Moreover, once an official receives an otherwise confidential document, he or she should check with the agency before disclosing the record to a member of the public or, in some cases, to other agency staff. Specifically, documents protected by attorney-client privilege should only be disclosed with approval from the legislative body.

A councilmember may still choose to request records under the CPRA. Government Code section 6252.5 states that, “an elected member or officer of any state or local agency is entitled to access to public records of that agency on the same basis as any other person. Nothing in this section shall limit the ability of elected members or officers to access public records permitted by law in the administration of their duties.” This means that an elected official is entitled to receive the same documents that are available to any other member of the public.

However, disclosure under the CPRA could result in a waiver of otherwise applicable exemptions. Therefore, CPRA requests from an elected official should be handled as any other records request from any member of the public.

In short, agencies and officials should understand their right of access to records so they can contemplate their duty to maintain the appropriate character of the record.

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