Chapter 17-100: Introduction

The management of University records is subject to federal and State laws. These impose simultaneous and sometimes conflicting obligations. Generally these laws require the University to disclose records to the public (Freedom of Information Act, California Public Records Act), yet simultaneously require protection (nondisclosure) of certain records or selected parts of records. Decisions regarding disclosure or nondisclosure of University records must be made in compliance with federal and State laws.

The primary written University guidance relating to the management and disposition of University records is contained in the "RMP" Series--Records Management and Privacy. (See Section 17-999).

This Chapter supplements the RMP Series with respect to the University's contract and grant administration function and summarizes the key guidelines regarding disclosure and nondisclosure for the convenience of the Contract and Grant Manual user. When making disclosure or nondisclosure decisions, reliance should be first on the RMP Series, and then on consultation with the campus Coordinator of Information Practices and/or General Counsel's Office, as needed.

17-110 Access to Records

This Manual section provides general guidance about some typical records access issues involved with contract and grant administration.

17-111 Access by Funding Agencies to Contract and Grant Records

Extramural awards may contain provisions outlining the nature and extent of the sponsor's right to examine contract or grant records. For federal grants and cooperative agreements, the relevant provisions are contained in 2 CFR Part 215.53, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (OMB Circular A-110), “Retention and Access Requirements for Records.” (See Section 17-F04). Federal contracts will usually be governed by Federal Acquisition Regulation (FAR) clause 52.215-2, Audit and Records - Negotiation . In general, these federal grant and contract provisions give authorized representatives access to all records directly pertinent to the sponsored agreement for a period up to three years after final payment or closeout. State agreements usually allow the Auditor General access to agreement records up to three years after final payment, if the State agency follows the State Contracting Manual, Chapter 9.16, Retention of Contract Records.

Access provisions in sponsored agreements that are broader than the above federal or State rules should not be accepted without first consulting with the campus Coordinator of Information Practices. If longer retention rates are accepted, the appropriate campus parties responsible for the documents involved would need to be informed.

Additional guidance may be found in Business and Finance Bulletin RMP-9, Guidelines for Access to University Personnel Records by Governmental Agencies. The following summary is intended to provide only a general overview of the contents of the RMP-9; for details, please refer to the Bulletin.

The guidelines contained in RMP-9 relate to various kinds of personnel records, namely, those designated as confidential, those designated as non-personal, and those designated as personal. Confidential records (e.g., medical, psychological, or investigative information about an individual) are defined in Section VII.B.1. of RMP-8, Legal Requirements on Privacy of and Access to Information. Non-personal information (e.g., an individual's name, date of hire, current position, etc.) are defined in Section VII.B.3. of RMP-8. Personal information (e.g., an individual's birthdate, citizenship, Social Security number, etc.) is defined in RMP-8, Section VII.B.4.

RMP-9 also provides guidance on how to respond if a representative of a governmental agency requests access to personnel records, including those that are confidential, personal, or non- personal. Non-personal information may be made available upon request. However, because of the sensitivity of confidential and/or personal information and the University's policy of protecting individual rights of privacy, the University takes the position that confidential and/or personal information will only be released if the requesting agency has, and can provide evidence that it has, statutory right to review these kinds of records (or, in the case of personal information, if the individual to whom the information pertains has authorized release). The requesting agency must also agree to appropriately maintain confidentiality.

17-112 Access by the Public to Unfunded Extramural Proposals

It is the University's position that the public generally does not have a right to inspect unfunded extramural proposals. Disclosure of unfunded proposals might jeopardize favorable action on the proposal because other institutions or individuals might discover and use unique or innovative ideas or processes contained in such proposals and acquire unfair competitive advantages, thus threatening the success of the University proposal. For further guidance, see the summary of the California Public Records Act and University Implementation in Section 17- S01.

For coverage on the public's right to obtain copies of University extramural proposals in the possession of federal agencies, see Section 17-F03, Federal Freedom of Information Act.

17-113 Access by the Public to Extramural Awards

The contents of the award file generally are available for inspection under the California Public Records Act. However, when extramural award records are released to a member of the public, care must be taken to ensure that those sections of the award file that include "confidential" or "personal" information (as defined in RMP-8, Legal Requirements on Privacy of and Access to Information, and regulated under the State of California Information Practices Act of 1977), proprietary information, or any other information that cannot be disclosed pursuant to State or federal law are not released. This is particularly true when the project involves the use of human subjects. See Sections 17-S01 and 17-S02 for further guidance.

For coverage on the public's right to obtain copies of University extramural award records in the possession of federal agencies, see Section 17-F03.

17-114 Access by the Public to Contract and Grant CGX Reports

Campuses are authorized to make available for inspection upon request reports produced in the Corporate Contracts and Grants System (CGX) listing proposals submitted by and awards made to The Regents (10-420 CGX System). An aggregate listing of contracts and grants from extramural sources is available for inspection at the Office of the President, Office of Research Policy Analysis and Coordination (RPAC). The contracts and grants are listed by sponsor and by campus. RPAC can help identify which campus holds a particular contract or grant and provide a contact point on the campus.

17-115 Access by University Employees to University Records

Access by employees of the University to extramural proposals, extramural awards, and Contract and Grant CGX reports is governed by the same guidelines as set forth for the general public in Sections 17-112, 17-113, and 17-114, respectively, with two exceptions. First, pursuant to Section 1798.24(d) of the State of California Information Practices Act of 1977, disclosure of "confidential" and "personal" information is permissible to:

Those officers, employees, attorneys, agents or volunteers of the University if the disclosure is relevant and necessary in the ordinary course of the performance of their official duties and is related to the purpose for which the information was acquired. Secondly, disclosure of information in such records may be required under the State of California Information Practices Act of 1977 to the employees about whom the information pertains. See Section 17-S02 for further guidance.

17-120 Privacy of Records

Primary University guidance concerning privacy of records is contained in RMP-8, Legal Requirements on Privacy of and Access to Information. The two main statutes dealing with privacy of records are the California Public Records Act (see Section 17-S01) and the California Information Practices Act of 1977. (See Section 17-S02.) RMP-8, Section VI, deals with the California Public Records Act, which is intended to ensure "access to information concerning the conduct of the people's business." Subsection VI.C. lists the types of records that are exempt from disclosure under the Act, including "preliminary drafts, notes, or inter-agency or intra-University memoranda which are not retained by the University in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure."

In addition, the Act addresses the confidentiality of University employee home addresses and telephone numbers, and computer software. With respect to the latter, "computer software developed by the University is not itself a public record....However, the public record status of information is not affected merely because it is stored in a computer--such information shall be disclosed."

It is noted that "although the statutory exemptions from disclosure allow the University to deny disclosure, they do not require non-disclosure." Because decisions concerning privacy of University records and contractual obligations affecting the privacy of University records must be made pursuant to various applicable laws, including the California Public Records Act, such decisions must be made on a case-by-case basis and coordinated with the campus Coordinator of Information Practices, as necessary.

RMP-8, Section VII outlines the provisions of the California Information Practices Act of 1977 (IPA). The IPA is an omnibus-type statute that is intended to balance the competing interests of access to public records held by the State government and the right to privacy of individuals.

The IPA originally defined three categories of information (confidential, personal, and nonpersonal) for which different standards of privacy and access were established. Recent amendments to the IPA have altered or deleted these three categories. Nevertheless, University policy continues to classify information as confidential, personal, or nonpersonal. In addition, University policy establishes a special category of confidential academic review records. These categories are defined in RMP-8, Section VII.B.

Individual rights of privacy are thus protected by University guidelines that call for the safeguarding and appropriate treatment of personal and/or confidential information (including confidential academic review records).

17-130 Attorney-client Privilege for General Counsel Opinions

Contract and Grant Officers request legal opinions from the Office of the General Counsel. The attorney-client privilege applies to opinions and other correspondence transmitted in confidence between the Office of the General Counsel and University employees. From time to time, Contract and Grant Officers, as well as other University employees, provide copies of such correspondence to others, including persons outside the University. It should be understood that when such correspondence is disclosed to third parties, the attorney-client privilege normally is lost. Thus, if an adversarial situation develops, the loss of the attorney- client privilege could have undesirable legal consequences for the University.

Contract and Grant Officers, as well as other University employees, should consult with the Office of the General Counsel before releasing legal opinions to third parties.

17-140 Classified Information and Records

Policy coverage and guidance concerning classified information and records are discussed in Chapter 20 of this Manual.