JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General
AGO 83-1103
No. 83-1103
California Attorney General Opinion
Office of the Attorney General State of California
June 15, 1984
THE
HONORABLE RONALD M. KURTZ, EXECUTIVE OFFICER, CALIFORNIA
STATE PERSONNEL BOARD, has requested an opinion on a question
we have rephrased as follows:
Does
the Information Practices Act of 1977 override the
attorney-client privilege where an individual seeks access to
information about himself which is maintained by a state
agency and which falls within the scope of that privilege?
CONCLUSION
The
Information Practices Act of 1977 does not override the
attorney-client privilege as to information sought by an
individual about himself which is maintained by a state
agency and which falls within the scope of that privilege.
ANALYSIS
The
Information Practices Act of 1977 (hereinafter
"Act") is contained in sections 1798 through
1798.76 of the Civil Code.
1 It was enacted to protect an
individual's right of privacy guaranteed by article I,
section 1, of the California Constitution and by the United
States Constitution with respect to "personal" and
"confidential" information (as defined by the Act)
which is collected, maintained and disseminated by the state
(§§ 1798.1, 1798.2). The Act is administered by the
Office of Information Practices in the Executive Office of
the State Personnel Board. (§§ 1798.4-1798.8.) Each
state agency maintaining "personal" or
"confidential" information must notify the Office
of Information Practices of such records, their purposes and
use, disclosure which will be made of the records, the legal
authority for maintaining the records, and other matters with
respect thereto. (§§ 1798.9- 1798.10.)
With
respect to disclosure of records, the Act prescribes that
"[n]o agency may disclose any personal or confidential
information unless the disclosure of such information"
is pursuant to or in accordance with one of twenty-one listed
conditions. (§ 1798.24.) The first of such conditions
is:
"(a) Pursuant to an unsolicited written request, or an
oral request which is accompanied by adequate indication of
identity, by the individual to whom the record
pertains."2
Article
8 of the Act (§§ 1798.30-1798.43) then provides
that:
"(a) Each agency shall permit any individual upon
request and proper identification to inspect all the
personal information in any record containing
personal information and maintained by reference to an
identifying particular assigned to such individual . . .
." (§ 1798.34; emphasis added.)
Article
8 however further provides that a state agency need not
disclose to an individual any confidential
information about that individual. (See § 1798.40.)
The
question presented for resolution herein is whether the
Information Practices Act of 1977 overrides the
attorney-client privilege
3 where an individual seeks access to
information about himself which is maintained by a state
agency and which falls within the scope of that privilege.
For example, suppose a state agency has sought the advice of
house counsel or the Attorney General as to whether certain
conduct by a state employee constitutes sufficient grounds
for punitive action against the employee. May the state
employee inspect counsel's written evaluation of such
situation which is given to the appointing power by counsel?
Or. suppose a state agency hires a consultant and a dispute
arises as to whether the consultant has properly performed
under his contract. The matter is referred to house counsel
or the Attorney General for advice. May the consultant
inspect the advice of counsel which has been reduced to
writing and transmitted to the board? Or. suppose the
Department of Motor Vehicles seeks the advice of house
counsel or the Attorney General as to whether a certain
physical impairment constitutes grounds for revocation of a
particular individual's driver's license. May the
driver inspect counsel's reply to the department? In
short, what is the impact of the Information Practices Act of
1977 upon the attorney-client privilege?
A
resolution of this question requires an examination of the
interrelationship of the Act with other relevant laws,
including not only the attorney-client privilege, but also
the California Public Records Act, Government Code, section
6250 et seq. It further requires a determination as to
whether information about an individual...
