Faculty FAQs for Public Records Requests

1. What should I do if I have received a Freedom of Information Act or California Public Records Act request?

If a faculty member receives a Freedom of Information Act (FOIA) or California Public Records Act (CPRA) request, the faculty member SHOULD NOT RESPOND DIRECTLY to the requestor. It is very important to IMMEDIATELY NOTIFY the principal campus officer responsible for these requests, the Director of Privacy and Information Practices at pra@ucsc.edu.  The law requires certain information be provided to the requesting party within 10 calendar days, so time is of the essence. Information Practices will assist faculty members and administer a timely response to the request, and if necessary, establish a reasonable timeframe for submission of documents to comply with the request.

2. Are records of the faculty considered to be public records?

Generally, yes.  The CA Public Records Act (CPRA) broadly defines a “public record” to include any “writing” that “relates to the conduct of the public’s business” and which is “prepared, owned, used, or retained” by a state agency, including the University of California.

3. Are records of the faculty required to be disclosed in response to a public records request?

Generally, yes, unless an exemption applies. There are a number of enumerated exemptions.  Examples of exemptions applicable to typical faculty records are: test questions and scoring keys, personal records that “constitute an unwarranted invasion of personal privacy”, and records prohibited from disclosure under federal and state law such as FERPA (federal Family Educational Rights and Privacy Act).   Additionally, records may be considered exempt on a case-by-case basis when the University determines that the public interest served by not disclosing a record clearly outweighs a public interest served in disclosing it; with the burden of justification on the University.

4. How should I respond to a notice from the Information Practices office that my records have been requested?

Information Practices will engage faculty in direct conversations should their records be identified as responding to a request to collaboratively develop an appropriate response approach specifically tailored to the request at hand.  It is important that the Information Practices office administer the request on behalf of the campus including consultation with counsel as appropriate; therefore, faculty should NOT attempt to respond to a CPRA request independently.

5. How should I manage my electronic communications in light of the potential obligation to disclose public records in the future?

Please refer to UCSC Records and Information Management brochure for best practices on managing email.  

6. Will the campus provide legal counsel to a faculty member who is subject to CPRA or FOIA requests? or alternatively, If I, as a faculty member, receive a CPRA or FOIA request, am I responsible for my own legal defense?

The short answers are:  (1) yes, university counsel often gives legal advice on CPRA and FOIA issues to faculty members, with the caveat that the “client” is the Regents, not the individual faculty member; (2) generally, no, faculty members who are acting within the course and scope of their employment are not required to find their own legal counsel.  Some explanation may be helpful.

1. 1. University counsel represents the Regents as a body, and this includes defending faculty members and other university employees who are acting in the course and scope of their employment duties (since the Regents generally bears responsibility for such actions of its employees).  University counsel does not, however, represent individual faculty members or university officers in their personal or individual capacities.  Generally, this is a significant issue in public records cases only because it goes to the issue of who decides what to disclose -- viz., who is the client?  Under the law, the Regents has the legal obligation to provide the records, including any records in the possession or control of its faculty, staff, and employees that relate to university business.  The Regents is the “client” here, and decisions about the representation and legal strategy are made by the Regents or its designee, the Chancellor.  

   2. Now, as a practical matter, in cases seeking faculty records, especially matters potentially impacting the faculty’s academic freedom, research, and other restricted or sensitive information, the university’s counsel works closely with the faculty to determine legal strategy in these cases.  If there is a dispute, however, over the scope of the legal duty of disclosure, such issues are within the authority of the “client” -- here, the Regents -- to resolve.  

   3. In the past, the Regents has taken strong positions in support of protecting sensitive academic research materials as exempt from disclosure.  See, e.g., Humane Society of the United States v. Superior Court (Regents of the Univ. of Calif.), (2013) 214 Cal. App. 4th 1233 (upholding Regents’ decision to withhold UC Davis researchers’ pre-publication research data from public records request).  The position the Regents take in individual cases necessarily depends, of course, on the facts of those cases.