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Persistent Legal Ignorance and Misinformation
By Terry Francke, General Counsel, Californias Aware

The most significant and persistent problem disclosed by the audit was the general ignorance of the 35-year-old law on disclosure of "Form 700" statements of public officials' financial interest-what they are, how soon they must be made available, how much can be charged for copies, what cannot be asked of the requester, and so on-among the very front-line office people most likely to be asked. Even worse than this ignorance in some cases was actual misinformation, such as the notion that other agencies or their websites were the ones where the forms would be found. From the smallest charter school to the University of California, public educational institutions need to provide their staffs with training on how to deal with walk-in requests for any kind of record or information. This does not mean a knowledge of legal intricacies. It does mean procedures and deadline awareness to see that someone takes responsibility for responding to a citizen's request for information in a timely and informed fashion.

A related process fault shows up in some of the responses to the written requests, typically drafted (if not signed) by attorneys. Too often, instead of picking up the phone or sending an e-mail to clear up a perceived ambiguity in a particular item and thereby enabling a conclusive "yes" or "no" as soon as possible, the authors of the determination letters either read the request narrowly and conclude that there are no "responsive records" or simply announce, in the final determination letter which may arrive weeks later, that the request was too "vague" or "broad".

Finally, the responses to the written requests repeatedly cite two rationales for denying access to particular records that have little or no basis in the law. Three decisions of the California Court of Appeal issued over 35 years - two of them overruling denials by school districts-conclude that public employees have no right of privacy to bar disclosure of, and their employers may not withhold, records showing complaints of serious misconduct that are found substantiated by investigation, or have other hallmarks of reliability. If the employees are public figures such as superintendents or other top officials, disclosure of investigative findings may be required, even when they tend to exonerate the official, if doing so is necessary to restore public confidence. And yet too many of the audited agencies seem utterly unaware of this case law and reflexively assume that "personnel" means "confidential", period. The other legal misperception among school districts is that the requested information as to the date and reason for an expulsion by a school board are made confidential as "pupil records". This is not the case, and in fact the only appellate case dealing with this issue was brought because the requester insisted on being given the pupils' names, and would not settle for anonymous statistical information offered by the district.