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Chapter 14. The Richard Mckee Transparency Act Of 2011 of California Education Code >> Division 9. >> Title 3. >> Part 57. >> Chapter 14.
The Legislature finds and declares all of the following:
(a) Mindful of the right of individuals to privacy, access to information concerning the conduct of the people's business is a necessary and fundamental right of every person in this state.
(b) University of California campus foundations are independently governed charitable nonprofit corporations that are legally separate from the University of California (UC), but provide important support to the individual campuses of the UC and the UC system as a whole.
(c) The release of information maintained by University of California campus foundations to the public must be balanced by the need to protect the individual privacy rights of donors and volunteers and to protect the fiduciary interests of these organizations.
(a) Mindful of the right of individuals to privacy, access to information concerning the conduct of the people's business is a necessary and fundamental right of every person in this state.
(b) University of California campus foundations are independently governed charitable nonprofit corporations that are legally separate from the University of California (UC), but provide important support to the individual campuses of the UC and the UC system as a whole.
(c) The release of information maintained by University of California campus foundations to the public must be balanced by the need to protect the individual privacy rights of donors and volunteers and to protect the fiduciary interests of these organizations.
As used in this chapter, the following terms have the
following meanings:
(a) "UC campus foundation" means the following corporations organized under the laws of the State of California: University of California, Berkeley Foundation, UC Davis Foundation, the University of California, Irvine Foundation, the UCLA Foundation, University of California, Merced Foundation, UC Riverside Foundation, U.C. San Diego Foundation, University of California, San Francisco Foundation, UC Santa Barbara Foundation, U.C. Santa Cruz Foundation, and any other foundation authorized by the Regents of the University of California.
(b) "Identifiable writing" means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
(a) "UC campus foundation" means the following corporations organized under the laws of the State of California: University of California, Berkeley Foundation, UC Davis Foundation, the University of California, Irvine Foundation, the UCLA Foundation, University of California, Merced Foundation, UC Riverside Foundation, U.C. San Diego Foundation, University of California, San Francisco Foundation, UC Santa Barbara Foundation, U.C. Santa Cruz Foundation, and any other foundation authorized by the Regents of the University of California.
(b) "Identifiable writing" means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
(a) Records maintained by a UC campus foundation shall be
available to the public to inspect or copy at all times during the
office hours of the foundation, except as hereafter provided. The
records subject to inspection or copying by the public pursuant to
this section shall include any identifiable writing containing
information relating to the conduct of the UC campus foundation that
is prepared, owned, used, or retained by a UC campus foundation. Any
reasonably segregable portion of a record shall be promptly available
for inspection and copying after redacting those portions exempt
from disclosure by law.
(b) Upon a request for a copy of a record that reasonably describes an identifiable record, a UC campus foundation shall make the record available within a reasonable time to any person upon payment of fees covering only the direct cost of duplication, except with respect to records maintained by a UC campus foundation exempt from disclosure by law. Nothing in this chapter shall be construed to permit a UC campus foundation to delay or obstruct the inspection or copying of public records.
(c) If a member of the public requests to inspect a public record or obtain a copy of a record held by a UC campus foundation, the UC campus foundation shall assist the person to make a focused and effective request that reasonably describes an identifiable record or records.
(b) Upon a request for a copy of a record that reasonably describes an identifiable record, a UC campus foundation shall make the record available within a reasonable time to any person upon payment of fees covering only the direct cost of duplication, except with respect to records maintained by a UC campus foundation exempt from disclosure by law. Nothing in this chapter shall be construed to permit a UC campus foundation to delay or obstruct the inspection or copying of public records.
(c) If a member of the public requests to inspect a public record or obtain a copy of a record held by a UC campus foundation, the UC campus foundation shall assist the person to make a focused and effective request that reasonably describes an identifiable record or records.
(a) Upon a written request for a copy or inspection of
records, a UC campus foundation shall determine, within 10 calendar
days from the receipt of such request, whether the request, in whole
or in part, seeks copies of disclosable records maintained by the UC
campus foundation and shall notify the requester in writing without
undue delay of the determination and the reasons therefor.
(b) (1) In unusual circumstances, the time limit prescribed in this section may be extended by a written notice by the head of the UC campus foundation, or his or her designee, to the person making the request that sets forth the reasons for the extension and the date on which a determination is expected to be sent. That notice shall not specify a date that would result in an extension of more than 14 days. When the UC campus foundation sends the determination, and if the UC campus foundation determines that the request seeks disclosable public records, the UC campus foundation shall state the estimated date and time when the records will be made available.
(2) As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request:
(A) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(B) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(C) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having a substantial subject matter interest therein.
(D) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.
(c) A UC campus foundation shall justify withholding disclosure of a record by demonstrating that the record is exempt from disclosure by law, or that, on the facts of the particular request, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.
(d) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing and shall not set forth the names and titles or positions of each person responsible for the denial.
(e) This chapter shall not limit access to a public record on the basis of the purpose for which the record is being requested, if the record is otherwise subject to disclosure.
(b) (1) In unusual circumstances, the time limit prescribed in this section may be extended by a written notice by the head of the UC campus foundation, or his or her designee, to the person making the request that sets forth the reasons for the extension and the date on which a determination is expected to be sent. That notice shall not specify a date that would result in an extension of more than 14 days. When the UC campus foundation sends the determination, and if the UC campus foundation determines that the request seeks disclosable public records, the UC campus foundation shall state the estimated date and time when the records will be made available.
(2) As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request:
(A) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(B) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(C) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having a substantial subject matter interest therein.
(D) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.
(c) A UC campus foundation shall justify withholding disclosure of a record by demonstrating that the record is exempt from disclosure by law, or that, on the facts of the particular request, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.
(d) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing and shall not set forth the names and titles or positions of each person responsible for the denial.
(e) This chapter shall not limit access to a public record on the basis of the purpose for which the record is being requested, if the record is otherwise subject to disclosure.
(a) Unless otherwise prohibited by law, a UC campus
foundation that has information that constitutes an identifiable
record not exempt from disclosure pursuant to this chapter that is in
an electronic format shall make that record available in an
electronic format when requested by any person and, when applicable,
shall comply with both of the following:
(1) A UC campus foundation shall make the electronic record available in the electronic format in which it holds the information.
(2) A UC campus foundation shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the UC campus foundation to create copies for its own use or for provision to other entities or persons. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.
(b) Notwithstanding paragraph (2) of subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record if either of the following applies:
(1) In order to comply with the provisions of subdivision (a), a UC campus foundation would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.
(2) The request would require data compilation, extraction, or programming to produce the record.
(c) If a request is for a record in a nonelectronic format, and the record is also available in an electronic format, a UC campus foundation may inform the requester that the record is available in an electronic format.
(d) Nothing in this section shall be construed to do any of the following:
(1) Require a UC campus foundation to reconstruct a record in an electronic format if the UC campus foundation no longer has the record available in an electronic format.
(2) Permit a UC campus foundation to make a record available only in an electronic format.
(3) Require a UC campus foundation to release an electronic record in the electronic form in which it is held by the UC campus foundation if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software with which it is maintained.
(4) Permit public access to records held by any UC campus foundation to which access is otherwise restricted by law.
(1) A UC campus foundation shall make the electronic record available in the electronic format in which it holds the information.
(2) A UC campus foundation shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the UC campus foundation to create copies for its own use or for provision to other entities or persons. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.
(b) Notwithstanding paragraph (2) of subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record if either of the following applies:
(1) In order to comply with the provisions of subdivision (a), a UC campus foundation would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.
(2) The request would require data compilation, extraction, or programming to produce the record.
(c) If a request is for a record in a nonelectronic format, and the record is also available in an electronic format, a UC campus foundation may inform the requester that the record is available in an electronic format.
(d) Nothing in this section shall be construed to do any of the following:
(1) Require a UC campus foundation to reconstruct a record in an electronic format if the UC campus foundation no longer has the record available in an electronic format.
(2) Permit a UC campus foundation to make a record available only in an electronic format.
(3) Require a UC campus foundation to release an electronic record in the electronic form in which it is held by the UC campus foundation if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software with which it is maintained.
(4) Permit public access to records held by any UC campus foundation to which access is otherwise restricted by law.
Nothing in this chapter shall require a UC campus foundation
to disclose information that is exempt from disclosure pursuant to
the specific exemptions set forth under Sections 6254 to 6255,
inclusive, of the Government Code.
(a) Notwithstanding any other law, the following records
maintained by a UC campus foundation shall not be subject to
disclosure:
(1) Information that would disclose the identity of a donor, prospective donor, or volunteer.
(2) Personal financial information, estate planning information, and gift planning information of a donor, prospective donor, or volunteer.
(3) Personal information related to any of a donor's private trusts or a donor's private annuities administered by a UC campus foundation.
(4) Information related to fundraising plans, fundraising research, and solicitation strategies to the extent that these activities are not already protected under Section 99040, Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code, Section 1060 of the Evidence Code, or subdivision (k) of Section 6254 of the Government Code.
(5) The identity of students and alumni to the extent that this information is already protected under state and federal statutes applicable to the University of California. This paragraph shall not apply to a part-time or full-time employee of the UC campus foundation, or to a student who participates in a legislative body of a student body organization on a University of California campus.
(b) Subdivision (a) shall not be construed to exempt from disclosure records that contain information regarding any of the following:
(1) The amount and date of a donation.
(2) Any donor-designated use or purpose of a donation.
(3) Any other donor-imposed restrictions on the use of a donation.
(4) (A) The identity of a donor who, in any fiscal year, makes a gift or gifts, in a quid pro quo arrangement, where either the value of the benefit received is in excess of two thousand five hundred dollars ($2,500) or the benefit would be impermissible under state or federal law. In these circumstances, records pertaining to the gift or gifts maintained by a UC campus foundation that would otherwise be exempt from disclosure under subdivision (a) shall be disclosed.
(B) Annually, on January 1, the monetary threshold set forth in subparagraph (A) shall be adjusted upward or downward to reflect the percentage change in the Consumer Price Index, as calculated by the United States Bureau of Labor Statistics, rounded off to the nearest one thousand dollars ($1,000).
(5) Self-dealing transactions, including, but not limited to, loans of money or property, or material financial interests of or between foundation officers or directors and a UC campus foundation, as set forth in Sections 5233 and 5236 of the Corporations Code. In these circumstances, records pertaining to the self-dealing transactions maintained by a UC campus foundation that would otherwise be exempt from disclosure under subdivision (a) shall be disclosed.
(6) Any instance in which a volunteer or donor of a gift is awarded, within five years of the date of the service or gift, a contract from the university or UC campus foundation that was not subject to competitive bidding. In these circumstances, records pertaining to the service or gift maintained by the UC campus foundation that would otherwise be exempt from disclosure under paragraph (1) of subdivision (a) shall be disclosed.
(1) Information that would disclose the identity of a donor, prospective donor, or volunteer.
(2) Personal financial information, estate planning information, and gift planning information of a donor, prospective donor, or volunteer.
(3) Personal information related to any of a donor's private trusts or a donor's private annuities administered by a UC campus foundation.
(4) Information related to fundraising plans, fundraising research, and solicitation strategies to the extent that these activities are not already protected under Section 99040, Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code, Section 1060 of the Evidence Code, or subdivision (k) of Section 6254 of the Government Code.
(5) The identity of students and alumni to the extent that this information is already protected under state and federal statutes applicable to the University of California. This paragraph shall not apply to a part-time or full-time employee of the UC campus foundation, or to a student who participates in a legislative body of a student body organization on a University of California campus.
(b) Subdivision (a) shall not be construed to exempt from disclosure records that contain information regarding any of the following:
(1) The amount and date of a donation.
(2) Any donor-designated use or purpose of a donation.
(3) Any other donor-imposed restrictions on the use of a donation.
(4) (A) The identity of a donor who, in any fiscal year, makes a gift or gifts, in a quid pro quo arrangement, where either the value of the benefit received is in excess of two thousand five hundred dollars ($2,500) or the benefit would be impermissible under state or federal law. In these circumstances, records pertaining to the gift or gifts maintained by a UC campus foundation that would otherwise be exempt from disclosure under subdivision (a) shall be disclosed.
(B) Annually, on January 1, the monetary threshold set forth in subparagraph (A) shall be adjusted upward or downward to reflect the percentage change in the Consumer Price Index, as calculated by the United States Bureau of Labor Statistics, rounded off to the nearest one thousand dollars ($1,000).
(5) Self-dealing transactions, including, but not limited to, loans of money or property, or material financial interests of or between foundation officers or directors and a UC campus foundation, as set forth in Sections 5233 and 5236 of the Corporations Code. In these circumstances, records pertaining to the self-dealing transactions maintained by a UC campus foundation that would otherwise be exempt from disclosure under subdivision (a) shall be disclosed.
(6) Any instance in which a volunteer or donor of a gift is awarded, within five years of the date of the service or gift, a contract from the university or UC campus foundation that was not subject to competitive bidding. In these circumstances, records pertaining to the service or gift maintained by the UC campus foundation that would otherwise be exempt from disclosure under paragraph (1) of subdivision (a) shall be disclosed.
Any person may institute proceedings for injunctive or
declarative relief or writ of mandate in any court of competent
jurisdiction to enforce his or her right to inspect or to receive a
copy of any record or class of records maintained by a UC campus
foundation under this chapter. The times for responsive pleadings and
for hearings in these proceedings shall be set by the judge of the
court with the object of securing a decision as to these matters at
the earliest possible time.
(a) Whenever it is made to appear by verified petition to
the superior court of the county where the records or some part
thereof are situated that certain records maintained by a UC campus
foundation are being improperly withheld from a member of the public,
the court shall order the officer or person charged with withholding
the records to disclose the record or show cause why he or she
should not do so. The court shall decide the case after examining the
record in camera, if permitted by subdivision (b) of Section 915 of
the Evidence Code, papers filed by the parties, and any oral argument
and additional evidence as the court may allow.
(b) If the court finds that a UC campus foundation official's decision to refuse disclosure is not justified under this chapter, he or she shall order the official to make the record public. If the judge determines that the official was justified in refusing to make the record public, he or she shall return the item to the official without disclosing its content with an order supporting the decision refusing disclosure.
(c) An order of the court, either directing disclosure by a UC campus foundation official or supporting the decision of the UC campus foundation official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.
(d) The court shall award court costs and reasonable attorney's fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and reasonable attorney's fees shall be paid by the UC campus foundation of which the official is a member or employee and shall not become a personal liability of the UC campus foundation official. If the court finds that the plaintiff's case is clearly frivolous, the court shall award court costs and reasonable attorney's fees to the UC campus foundation.
(b) If the court finds that a UC campus foundation official's decision to refuse disclosure is not justified under this chapter, he or she shall order the official to make the record public. If the judge determines that the official was justified in refusing to make the record public, he or she shall return the item to the official without disclosing its content with an order supporting the decision refusing disclosure.
(c) An order of the court, either directing disclosure by a UC campus foundation official or supporting the decision of the UC campus foundation official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.
(d) The court shall award court costs and reasonable attorney's fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and reasonable attorney's fees shall be paid by the UC campus foundation of which the official is a member or employee and shall not become a personal liability of the UC campus foundation official. If the court finds that the plaintiff's case is clearly frivolous, the court shall award court costs and reasonable attorney's fees to the UC campus foundation.
(a) Notwithstanding any other provisions of law, and except
as provided for in subdivision (c), whenever a UC campus foundation
discloses a record it maintains that is otherwise exempt from this
chapter, this disclosure shall constitute a waiver of the exemptions
specified in this chapter with regard to that record.
(b) For purposes of this section, "UC campus foundation" includes a member, agent, volunteer, or officer of the UC campus foundation acting within the scope of his or her affiliation with a UC campus foundation.
(c) Subdivision (a) shall not apply to the following disclosures:
(1) Disclosures made to a donor or prospective donor with regard to that donor's donation or prospective donation to a UC campus foundation.
(2) Disclosures made to a volunteer or prospective volunteer with respect to that volunteer's services being provided to a UC campus foundation.
(3) Disclosures made through other legal proceedings or as otherwise required by law.
(4) Disclosures within the scope of a disclosure required by law that limits disclosure of specified writings to certain purposes.
(5) Disclosures described in subdivision (a) of Section 92956 to an auditor conducting an audit.
(6) Disclosures described in subdivision (a) of Section 92956 to a bank or similar financial institution in the course of ordinary financial transactions, or in response to a request from the bank or other financial institution relating to the ordinary delivery of financial services.
(b) For purposes of this section, "UC campus foundation" includes a member, agent, volunteer, or officer of the UC campus foundation acting within the scope of his or her affiliation with a UC campus foundation.
(c) Subdivision (a) shall not apply to the following disclosures:
(1) Disclosures made to a donor or prospective donor with regard to that donor's donation or prospective donation to a UC campus foundation.
(2) Disclosures made to a volunteer or prospective volunteer with respect to that volunteer's services being provided to a UC campus foundation.
(3) Disclosures made through other legal proceedings or as otherwise required by law.
(4) Disclosures within the scope of a disclosure required by law that limits disclosure of specified writings to certain purposes.
(5) Disclosures described in subdivision (a) of Section 92956 to an auditor conducting an audit.
(6) Disclosures described in subdivision (a) of Section 92956 to a bank or similar financial institution in the course of ordinary financial transactions, or in response to a request from the bank or other financial institution relating to the ordinary delivery of financial services.
Any provision in a contract entered into after the effective
date of this chapter between a UC campus foundation and another
party that would prevent the disclosure of information required to be
disclosed pursuant to this chapter is void and unenforceable, and
such a provision shall not justify a failure to comply with the
requirements of this chapter.
This chapter shall not apply to records subject to any
request made pursuant to the California Public Records Act, as set
forth in Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code.
