The complex legalities of managing university records
By AJay singh
Today Staff Writer
It’s a question every campus employee should be aware of: How do you respond efficiently when the university’s records are subpoenaed or requested under the California Public Records Act, as they routinely are? The answer lies in a labyrinth of information, procedures and legalese, speakers at a seminar on campus said last week.
Responding to subpoenas is complicated. “From the litigation point of view, most subpoenas have very long definitions of what records are,” explained Cynthia Vroom, counsel for the UC Office of the President, at the Oct. 19 conference held at Covel Commons. Organized by UCLA Records and Resource Management, the Information Practices Session was attended by more than 150 staff from campus as well as UC Irvine, UC San Diego and UC Merced.
Public records include all written records in any format, including electronic databases, e-mail — even deleted e-mail — and so-called “shadow” copies of files, on which personal comments are sometimes flagrantly made. Documents kept past the expiration of their retention period — just in case — also qualify.
There are three key points to keep in mind when served with a civil subpoena, Vroom said. First, every court order must be obeyed. Second, in cases where an individual’s records are being sought, it’s imperative to inform that person, but only after ascertaining that the court has served him or her with a “consumer notice” at least 10 days prior to the subpoena. Finally, Vroom warned, “don’t produce any documents that are privileged or confidential.”
In addition, UCLA is required to collect as well as disclose certain personal information under the California Information Practices Act, which also gives individuals the right to access and obtain copies of records pertaining to them, with a few exceptions, as well as request an amendment of their records.
This often creates a dilemma between “keeping public matters public and private matters private, and drawing that distinction is a challenge,” said UCOP Counsel Maria Shanle. Disclosing personnel or medical records, for example, constitutes an “unwarranted invasion of personal privacy” but can conflict with the public’s right to know, she said.
One tricky issue is the disclosure of databases, which must be presented in electronic form (all other disclosures must be sent by mail). This necessitates extracting data, manipulating it and then disclosing it in a presentable format. “It’s sort of like creating a new record and goes against the provision that you can’t create new records (after being subpoenaed),” said Shanle. “But the good news is that you can charge for the services.”
Another potential minefield is dealing with subpoenas under the Patriot Act, the 2001 antiterrorist law that empowers the FBI to track all electronic communications, including e-mail and calls made over the telephone and cell phones. The act also allows the FBI to obtain a court order requiring an institution to produce any type of record, whether pertaining to libraries, hospitals or students.
The Patriot Act also hampers research, Vroom said, because students from certain countries on the federal government’s terrorist watch list are prohibited from gaining access to certain materials that might be useful for terrorist activities. Most of the act’s provisions are scheduled to expire Dec. 31, and, said Vroom, it’s likely that a “gag order” in the act forbidding institutions from notifying individuals that they are under FBI scrutiny will be modified to allow an institution to challenge the order in court.
Go to www.finance.ucla.edu/records or call Linda Arquieta at Records and Resource Management at (310) 794-8960 for more information.
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