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SANTA CLARA COUNTY CODE OF ORDINANCES: Division A16 INFORMATION PRACTICES AND INDIVIDUAL PRIVACY*

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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Division A16
INFORMATION PRACTICES AND INDIVIDUAL PRIVACY*

Editor's note--Ord. No. NS-300.288, § 1, adopted June 12, 1979, specifically amended the Code by adding Div. A16, §§ A16-1--A16-13, as herein set out.

Sec. A16-1. Findings.

(a) The privacy of an individual can be directly affected by the collection, maintenance, use and dissemination of personal information.

(b) The increasing use of computers and sophisticated information technology, while essential to the efficient operations of government, has facilitated the transfer of information and increased the potential harm to individual privacy that can occur from any collection, maintenance, use or dissemination of personal information.

(c) The opportunities for an individual to secure employment, insurance and credit, and the right to due process and other legal protections, are endangered by the misuse of certain information systems.

(d) The right to privacy is a personal and fundamental right upheld by the Constitution of the United States and the State of California.

(e) In order to protect the privacy of individuals identified in information systems maintained by County agencies, it is necessary and proper for the Board of Supervisors to regulate the collection, maintenance, use and dissemination of personal information by such agencies.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-2. Declaration of intent.

In order to protect the privacy of individuals, it is necessary that the maintenance and dissemination of personal information be subject to strict limits.

(a) The purpose of this division is to provide certain safeguards for an individual against an invasion of personal privacy by requiring County agencies, except as otherwise provided by law, to:

(1) Permit individuals to determine what records pertaining to them are collected, maintained, used and disseminated by such agencies;

(2) Permit individuals to prevent records pertaining to them, obtained by such agencies for a particular purpose, from being used or made available for another purpose without their consent;

(3) Permit individuals to gain access to information pertaining to them in agency records, to have a copy made of all or any portion thereof, and to correct or amend such records;

(4) Collect, maintain, use or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is reasonably current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information;

(5) Avoid the creation of personal records or portions thereof which are not necessary for fulfilling the stated purpose of the agency, and insure timely destruction of outdated material;

(6) Permit exemptions from the requirement with respect to records provided in this division only in those cases where there is a need for such exemption as has been determined by the Board of Supervisors.

(b) This division applies to personal and confidential information, except as otherwise specified, and does not apply to nonpersonal information.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-3. Definitions.

As used in this division:

(a) The term "confidential information" means any of the following:

(1) Any information in any record, maintained by a County agency or component thereof which performs as its principal function efforts to prevent, control or reduce crime or to apprehend criminals, if the information is:

(i) Compiled for the purpose of identifying individual criminal offenders and alleged offenders and consists only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release and parole and probation status; or

(ii) Compiled for the purpose of a criminal investigation of suspected criminal activities, including reports of informants and investigators, and associated with an identifiable individual; or

(iii) Contained in any record which could identify an individual and which is compiled at any stage of the process of enforcement of the criminal law, from the arrest or indictment stage through release from supervision.

(2) Information consisting solely of written testing or examination material, or scoring keys used solely to determine individual qualifications for appointment or promotion in public service, or used to administer a licensing examination, or academic examination, the disclosure of which would compromise the objectivity or fairness of the testing or examination process.

(3) Any information concerning medical, psychiatric, rehabilitation, drug abuse, alcoholism, social services or psychological material, if the holder of the record determines that disclosure of the information would be medically or psychologically detrimental to the individual.

(4) Information, other than that maintained by any County agency or component thereof, which performs as its principal function any activity pertaining to the enforcement of criminal law, consisting solely of investigative materials maintained by an agency for the purpose of investigating a specific violation of law, but only so long as an investigation is in progress and such investigative information has not been maintained for a period longer than is necessary to complete a criminal, civil or administrative prosecution or initiate other remedial action. An agency may keep the source or sources of information used for an investigation under this section confidential so long as it determines that confidentiality is necessary to protect its law enforcement activities.

(5) Any information which is required by federal or state statute to be withheld from the individual to whom it pertains.

(b) The term "personal information" means any of the following:

(1) Any information in any record about an individual that is maintained by an agency, including but not limited to his or her education, financial transactions, medical or employment history, including verification of participation in any program as specified in Subdivision (a)(3) of this section. It does not mean information found to be confidential or nonpersonal under Subdivision (a) or (c) of this section.

(2) Records consisting of information used solely for the purpose of verifying and paying government health care service claims made pursuant to Division 9 of the Welfare and Institutions Code (Welfare and Institutions Code § 10000 et seq.).

(3) Any information which is required by statute to be given to the individual to whom it pertains.

(4) Any information to which access by the individual is not expressly prohibited by law.

(c) The term "nonpersonal information" means all of the following:

(1) Information consisting only of names, addresses, publicly listed telephone numbers and other limited factual data which could not, in any reasonable way:

(i) Reflect or convey anything detrimental, disparaging or threatening to an individual's reputation, rights, benefits, privileges or qualifications; or

(ii) Be used by an agency to make a determination that would affect an individual's rights, benefits, privileges or qualifications.

(2) An agency telephone book or directory which is used exclusively for telephone and directory information.

(3) Any book/card catalog of any library or the contents of any book listed within such book/card catalog.

(4) Any mailing list which is used exclusively for the purpose of mailing agency information.

(5) Records required by law to be maintained and used solely as a system of statistical records, but only if such records are maintained for statistical research or reporting purposes only and are not used in whole or in part in making any determination about an identifiable individual.

(6) Records to which an individual has the right of examination pursuant to Article 5 of Chapter 1 of Title 1 of Part 4 of the Penal Code (Penal Code § 11120 et seq.).

(d) The term "agency" means every County office, officer, department, division, bureau, board, commission, task force, subcontractor or other County agency, except that the term "agency" shall not include:

(1) The Board of Supervisors;

(2) Any agency established under Article VI of the California Constitution;

(3) County Counsel's office.

(e) The term "disclose" means to disclose, release, transfer, disseminate or otherwise communicate all or any part of any record orally, in writing, or by electronic or any other means to any person or entity other than the one to whom the record pertains.

(f) The term "individual" means a natural person.

(g) The term "maintain" includes maintain, acquire, use or disclose.

(h) The term "person" means any natural person, corporation, partnership, firm or association.

(i) The term "record" means any file or grouping of information about an individual that is maintained by agency, including but not limited to his or her education, financial transactions, medical or employment history, and that contains his or her name, identifying number, symbol or other identifying particular assigned to the individual, including but not limited to a finger or voice print or photograph, and is maintained by reference to such an identifying particular.

(j) The term "system of records" means one or more records, which pertain to one or more individuals, which is maintained by an agency from which information is retrieved by the name of an individual or by some identifying number, symbol or other identifying particular assigned to the individual.

(k) The term "governmental entity" means any branch of the federal government, state government or County government.

(l) The term "informed consent" means knowingly and willingly giving permission to disclose specific personal information to a specific person, agency or governmental entity for a specific purpose covering a stated period of time in writing, obtained not more than 30 days before the disclosure or in the time limit specified by the individual.

(m) The term "authorized representative" means the duly appointed guardian or conservator of an individual, or a person representing the individual; providing, that it can be proven with reasonable certainty through the possession of agency forms, documents or correspondence that such person is the authorized representative of the individual.

(Ord. No. NS-300.288, § 1, 6-12-77)

Sec. A16-4. Notification requirements.

(a) Each agency maintaining a system of records containing personal or confidential information shall, within 90 days from the effective date of this division, file with the County Executive the notice specified in Subdivision (b) following. Such notices shall also be filed with that office by such agencies on July 1, 1979, and on the first day of July in each year thereafter. Such notices shall be permanent public records. Any agency maintaining more than one system of records may combine such notices when convenient and appropriate.

(b) Notices required to be filed by the previous Subdivision (a) shall specify each of the following:

(1) The name of the agency and the division within the agency that is maintaining the records containing personal or confidential information, and the name or title of the system of records, if any, in which such information is maintained.

(2) The categories of individuals and the approximate number of individuals on whom records containing personal or confidential information are maintained in the system.

(3) Each use or purpose within the agency for the personal or confidential information within the system.

(4) Access, retrievability and disclosure of the information that will be made pursuant to Subdivisions (d), (e) and (f) of Section A16-6.

(5) The legal authority which authorizes the maintenance of personal or confidential information.

(6) Storage, retention, purge and disposal policies for the personal or confidential information.

(7) The source or sources of the information in the system.

(8) The title and business address of the agency official who is responsible for the system of records.

(9) The procedure whereby individuals can be notified upon request if the system of records contains a record pertaining to them.

(10) The procedure whereby individuals can be notified upon request how they can gain access to any record pertaining to them contained in the system of records, and how they can contest its contents.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-5. Agency requirements.

(a) Each agency shall maintain in its records only that personal or confidential information which is relevant, complete, timely, accurate and necessary to accomplish a stated purpose of the agency or which is required, authorized or mandated by the federal government, state government or County Charter.

(b) Each agency shall collect personal or confidential information, to the greatest extent practicable, directly from the individual who is the subject of the information rather than from another source.

(c) Whenever an agency collects personal information, the agency shall maintain the source or sources of the information, unless the source is the data subject or the subject has received a copy of the source document, including but not limited to the name of any source who is an individual acting in his or her own private or individual capacity. If the source is an agency, governmental entity or other organization, such as a corporation or association, this requirement can be met by maintaining the name of the agency, governmental entity or organization, as long as the smallest reasonably identifiable unit of that agency, governmental entity or organization is named.

The agency shall maintain the source or sources of the information in a readily accessible form so as to be able to provide it to the data subject when they inspect any record pursuant to Subdivision (e) of Section A16-8. This section shall not apply if the source or sources are exempt from disclosure under the provisions of this division.

(d) Each agency shall, with any form used to collect personal or confidential information from individuals, provide:

(1) The name of the agency and the division within the agency that is requesting the information.

(2) The title, business address and telephone number of the agency official or delegate thereof who is responsible for the system of records and who shall, upon request, inform an individual regarding the location of his or her records and the categories of any persons who use the information in those records.

(3) The authority, whether granted by statute, regulations or executive order which authorizes the maintenance of the information.

(4) With respect to each item of information, whether submission of such information is mandatory or voluntary.

(5) The consequences, if any, of not providing all or any part of the requested information.

(6) All purposes within the agency for which the information is to be used.

(7) Any known interagency or intergovernmental transfer which may be made of the information.

(8) The individual's right of access to all records containing personal information which are maintained by the agency. This subsection shall not apply to any confidential information.

(9) The procedure whereby individuals can be notified, upon request, how they can gain access to any record pertaining to them contained in the system of records, and how they can contest its contents and request amendment or deletion of data which the individual believes to be inaccurate, incomplete, irrelevant or untimely.

(e) Each agency shall maintain all records, to the maximum extent possible, with accuracy, relevance, timeliness and completeness. Such standard need not be met except when such records are used to make a determination about the individual. When an agency transfers a record to another agency or to an individual outside the administrative control of the agency, it shall correct, update, withhold or delete any portion of the record that it knows or has reason to believe is inaccurate or untimely.

(f) Each agency, when it provides by contract for the collection, maintenance, use or dissemination of records containing personal or confidential information to accomplish an agency function, shall cause, consistent with its authority, the requirements of this division to be applied to such records.

(g) Each agency shall establish rules of conduct for persons involved in the design, development, operation, disclosure or maintenance of records containing personal or confidential information and instruct each such person with respect to such rules and the requirements of this resolution, including any other rules and procedures adopted pursuant to this division and the remedies and penalties for noncompliance.

(h) Each agency shall establish appropriate and reasonable administrative, technical and physical safeguards to ensure compliance with the provisions of this division, to ensure the security and confidentiality of records, and to protect against anticipated threats or hazards to their security or integrity which could result in any injury.

(i) Each agency shall designate an agency employee to be responsible for ensuring that the agency complies with all of the provisions of this division.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-6. Conditions of disclosure.

No agency may disclose any personal or confidential information unless the disclosure of such information is:

(a) To the individual to whom the record pertains upon presentation of reasonable identification.

(b) To an agency or a person with the prior informed consent of the individual to whom the record pertains.

(c) To the authorized representative of the individual to whom the record pertains, upon presentation of reasonable identification.

(d) To those employees, volunteers or contractors of the agency which have custody of the information if such disclosure is relevant and necessary in the course of the performance of their official duties and is related to the purpose for which the information was acquired.

(e) To a person, or to another agency, where the transfer is allowed by constitution, statute, regulation or ordinance and such use is within a purpose for which the information was collected, and such use or transfer is listed in the notice provided pursuant to Subdivision (a) of Section A16-4.

(f) To a government entity when required by regulation, ordinance, state law or federal law.

(g) Pursuant to the California Public Records Act, Chapter 3.5 of Division 7 of Title 1 of the Government Code (Government Code § 6250 et seq.), provided that Government Code § 6253 and Government Code § 6254(c) shall not be interpreted to permit the disclosure of personal information contained in individual employment or medical files, or other personal information which would clearly be disparaging of or threatening to the reputation or rights of an individual other than information regarding a County employee acting in his or her official capacity.

(h) To a person who has provided the agency with advance adequate written assurance that the information will be used solely for statistical research or reporting purposes, but only if the information to be disclosed is in a form that will not identify any individual.

(i) Pursuant to a determination by the agency which maintains the information that compelling circumstances affecting the health or safety of the individual exist if, upon such disclosure, notification is transmitted to the individual to whom the information pertains at his or her last known address. Disclosure shall not be made if it is in conflict with state or federal law.

(j) To governmental or private archives as a record which has sufficient historical or other value to warrant its continued preservation, or for evaluation by the archivist or the designate thereof to determine whether the record has such value, except that probation, medical, mental health, alcoholism, drug abuse, or social services records are specifically excluded.

(k) When a request for records in the form of an administrative summons, subpoena duces tecum, notice of the deposition of the custodian of records, or court order is received by an agency which requires the production of personal information concerning individuals named in the request for records.

(l) To any person pursuant to a search warrant.

(m) Pursuant to Article 3 of Chapter 1 of Division 2 of the Vehicle Code (Vehicle Code § 1800 et seq.).

(n) For the sole purpose of verifying and billing private and government sources of third party payment.

(o) To a law enforcement agency when required by law for an investigation of criminal activity, unless such disclosure is otherwise prohibited by law.

(p) To another person, an agency or a governmental entity to the extent necessary to obtain information from such person, agency or governmental entity as necessary for an investigation by the agency of a failure to comply with a specific state law which the agency is responsible for enforcing.

(q) Information as contained in Subdivision (a)(1) of Section A16-3 may, upon written authorization of the data subject or the authorized representative of that individual, be disclosed to a physician, psychiatrist or to other medical, psychological or counseling personnel licensed by the State of California, or to an agency or person designated by the data subject.

(Ord. No. NS-300.288, 6-12-79)

Sec. A16-7. Accounting of disclosures.

(a) Unless notice of the types of disclosures has been provided pursuant to the provisions of Subdivisions (a) and (b) of Section A16-4, each agency shall keep accurate accounting of each disclosure which shall include the date, nature and purpose of the disclosure, and the name, title and business address of the person or agency to whom such disclosure was made.

(b) Each agency shall keep an accurate accounting of the date, nature and purpose of each disclosure of a record made pursuant to Subdivision (i), (o) or (p) of Section A16-6. The accounting shall also include the name, title and business address of the person or agency to whom such disclosure was made. No detailed accounting will be required for disclosures made pursuant to Subdivisions (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (m), (n) and (q) of Section A16-6.

(c) Each agency shall retain the accounting made pursuant to Subdivision (a) or (b) of this section for at least three years after the disclosure for which the accounting is made, or until the record is destroyed, whichever is shorter.

Nothing in this section shall be construed to require retention of the original documents for a three-year period, providing that the agency can otherwise comply with the requirements of this section.

(d) Each agency, after July 1, 1979, shall inform any person or agency to whom a record containing personal or confidential information has been disclosed during the preceding three years, but not prior to July 1, 1979, of any correction of an error or notation of dispute made pursuant to Subdivision (f) of Section A16-8 if:

(i) An accounting of such disclosure is required by Subdivision (a) or (b) of this section, and the accounting has not been destroyed pursuant to Subdivision (c) of this section; or

(ii) The information provides the name of the person or agency to whom the disclosure was made; or

(iii) The person who is the subject of the disclosed record provides the name of the person or agency to whom the information was disclosed.

(Ord. No. NS-300.266, § 1, 6-12-77)

Sec. A16-8. Access to records and administrative remedies.

(a) Each agency shall promulgate rules specifying procedures to be followed in order fully to implement each of the rights of individuals set forth in this section.

(b) This section shall apply only to personal information and not confidential information, except as otherwise expressly stated in Subdivision (k) of this section.

(c) Each individual shall have the right to inquire and be notified as to whether the agency maintains a record about himself or herself. Inquiries shall specify the name or title of the system or records as filed under Subdivision (a) of Section A16-4. Agencies shall allow individuals to review the notices that they have submitted to the County Executive pursuant to Subdivision (a) of Section A16-4 and shall take other reasonable steps to assist individuals in making their requests sufficiently specific.

Any such notice sent to an individual which in any way indicates that the agency maintains any such record shall include the title and business address of the agency official responsible for maintaining the records, the procedures to be followed to gain access to the records, and the procedures to be followed for an individual to contest the contents of such records. Such information to be included in such notice to an individual shall also be included in the notice filed with the County Executive pursuant to Subdivision (a) of Section A16-4.

In implementing the right conferred by this section, an agency may specify in its rules reasonable times, places and requirements for identifying an individual who requests access to a record, and for disclosing the contents of a record.

(d) Each agency may establish fees to be charged, if any, to an individual for making copies of a record. Such fees shall exclude the cost of any search for a review of the record, and shall not exceed $0.50 per page, unless the agency fee for copying is established by statute or ordinance.

(e) (1) Each agency shall permit any individual or the authorized representative of that 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, within 15 working days of the receipt of written request for active records, and within 60 days of the request for inactive records that are in central storage. Failure to respond within the time limits shall be deemed denial. In addition, such individual shall be permitted to inspect any record containing personal information in which an identifying particular assigned to such individual appears, if the agency knows or should know that such a record exists. This individual also shall be permitted to inspect the accounting made pursuant to Subdivision (a) or (b) of Section A16-7 of this division.

(2) The agency shall permit the individual or the authorized representative of the individual and, upon request, another person of the individual's own choosing, to accompany such individual to inspect all the personal information in the record and have an exact copy made of all or any portion thereof within 15 days of such inspection. The agency may require the individual to furnish a written statement authorizing disclosure of such individual's record in the accompanying person's presence.

(3) The agency shall present the information in the record in a form reasonably comprehensible to the general public or a written or oral interpretation of the record.

(4) Whenever an agency is unable to gain access to a record by reference to name only, or when access by name only would impose an unreasonable administrative burden, it may require the individual to submit such other identifying information as will facilitate access to the record.

(5) When an individual is entitled under this section to gain access to the information in a record containing personal information, such information or a true copy thereof, or both, shall be made available to the individual or to the authorized representative of the individual by mail whenever reasonable.

(f) Each agency shall permit an individual to request in writing an amendment of a record and shall, within 30 days of the date of receipt of such request:

(1) Make each correction in accordance with the individual's request of any portion of a record which the individual believes is not accurate, relevant, timely or complete, and inform the individual of the corrections made in accordance with their request; or

(2) Inform the individual of its refusal to amend the record in accordance with such individual's request, the reason for the refusal, the procedures established by the agency for the individual to request a review of the refusal by the head of the agency or an official specifically designated by the head of the agency, and the name, title and business address of the reviewing official.

(g) Each agency shall permit any individual who disagrees with the refusal of the agency to amend a record to request a review of such refusal by the head of the agency or an official specifically designated by the head of such agency and, not later than 30 days from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such review period by 30 days. If, after such review, the reviewing official refuses to amend the record in accordance with the request, the agency shall permit the individual to file with the agency a statement of reasonable length setting forth the reason for the individual's disagreement.

(h) The agency, with respect to any disclosure containing information about which the individual has filed a statement of disagreement, shall clearly note any portion of the record which is disputed, and make available upon request copies of such individual's statement and copies of a concise statement of the reasons of the agency for not making the amendment to any person or agency to whom the disputed record has been or is disclosed.

(i) If information, including letters of recommendation, compiled for the purpose of determining suitability, eligibility or qualifications for employment, advancement, renewal of appointment or promotion, status as adoptive parents, or for the receipt of public contracts, was received with the promise or, prior to July 1, 1979, with the understanding that the identity of the source of the information would be held in confidence, and such source is not in a supervisory position with respect to the individual to whom the record pertains, the agency shall fully inform the individual of all personal information about that individual without identification of the source. This may be done by providing a copy of the text of such material with only such deletions as are necessary to protect the identity of the source or by providing a comprehensive summary of the substance of the material. Whichever method is used, the agency shall insure that full disclosure is made to the subject of any personal information that could reasonably in any way reflect or convey anything detrimental, disparaging or threatening to an individual's reputation, rights, benefits, privileges or qualifications, or that could be used by an agency to make a determination that would affect an individual's rights, benefits, privileges or qualifications.

(j) Subdivisions (f), (g) and (h) of this section shall not apply to that portion of any record evidencing property rights.

(k) (1) Except as provided in Subdivision (k)(3) hereof, if the agency determines that information requested pursuant to Subsection (e) of this section is confidential, it shall inform the individual in writing of the agency's finding that the information contained in the record is confidential, and that disclosure of the contents is not authorized by law.

(2) Except as provided in Subdivision (k)(3) hereof, each agency, within 30 days from the receipt of a request in writing by an individual directly affected by the determination of the agency that particular information is confidential, as defined in this division, shall conduct a review of such determination and inform the individual in writing of the findings of such review. The review shall be conducted by the head of such agency or an official specifically designated by the head of such agency.

(3) If the agency believes that compliance with Subdivision (k)(1) hereof would seriously interfere with attempts to apprehend persons who are wanted for committing a crime or with attempts to prevent the commission of a crime, or would endanger the life of an informant or other person submitting information contained in the confidential record, it may petition the presiding judge of the Superior Court to issue an ex parte order authorizing the agency to respond to the individual that no record is maintained. All proceedings before the court shall be in camera. If the presiding judge finds that there are reasonable grounds to believe that compliance with Subdivision (k)(1) hereof will seriously interfere with attempts to apprehend persons who are wanted for committing a crime, or with attempts to prevent the commission of a crime, or will endanger the life of an informant or other person submitting information contained in the confidential record, the presiding judge shall issue an order authorizing the agency to respond to the individual that no record is maintained by the agency. Such order shall not be issued for longer than 30 days, but can be renewed at 30-day intervals. If a request pursuant to this section is received after the expiration of the order, the agency must either respond pursuant to Subdivision (k)(1) hereof, or seek a new order pursuant to this subdivision.

(l) In disclosing information contained in a record to an individual, an agency shall not disclose any harmful personal information relating to another individual which may be contained in such record and which came from a source other than the data subject. To comply with this section, an agency shall, in disclosing information, delete from disclosure such information as may be necessary.

(m) In disclosing information contained in a record to an individual, an agency shall not disclose any confidential information which may be contained in a record containing personal information. To comply with this section, an agency shall, in disclosing personal information contained in a record, delete from such disclosure any confidential information.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-9. Miscellaneous provisions.

(a) An individual's name and address may not be distributed for commercial purposes, sold or rented by an agency unless such action is specifically authorized by law.

(b) Upon written request of any individual, any agency which maintains a mailing list shall remove the individual's name and address from such list, except that such agency need not remove the individual's name if such name is exclusively used by the agency to directly contact the individual.

(c) The provisions of this subdivision shall be liberally construed so as to protect the rights of privacy arising hereunder or under the federal or state constitutions.

(d) (1) Each agency record which is accepted by the Director of Environmental Management and General Services Agency for storage, processing and servicing for the purpose of this division, shall be considered to be maintained by the agency which deposited the record, and shall continue to be subject to the provisions of this division. Such Director shall not disclose the record except to the agency which maintains the record, or pursuant to rules established by such agency which are not inconsistent with the provisions of this division.

(2) Each agency record pertaining to an identifiable individual which was or is transferred to the governmental archives as a record which has sufficient historical or other value to warrant its continued preservation by the County government prior to or after July 1, 1979, shall, for the purposes of this division, be considered to be maintained by the archives.

(e) Where an agency has recorded a document creating a lien or encumbrance on real property in favor of the State or County, nothing herein shall prohibit any such agency from disclosing information relating to the identity of the person against whom such lien or encumbrance has been recorded for the purpose of distinguishing such person from another person bearing the same or a similar name.

(f) Any agency may petition the Board of Supervisors for an exemption from the provisions of this division.

(g) Any law enforcement agency which performs as its function the enforcement of criminal laws, including police efforts to prevent, control or reduce crime or to apprehend criminals, and the activities of prosecutors, correctional, probation, pardon, parole authorities and criminal justice information control, which is limited exclusively to criminal justice agencies and subject to federal and state law, are exempt from the requirements of this division.

(h) All contractors are exempt from the requirements of this division for a period of six months from the effective date of this division.

(i) All procedures concerning employee records which are a portion of negotiated contracts between bargaining units and the Board of Supervisors are exempt from the requirements of this division.

(j) All records pertaining to worker's compensation and liability claim investigatory files are exempt from the requirements of this division.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-10. Construction with other laws.

(a) This division shall not be construed to supersede any provision of state law or federal law or administrative regulations of state or federal agencies.

(b) This division shall not be deemed to abridge or limit the rights of litigants, including parties to administrative proceedings, to discovery under the laws of this State.

(c) Nothing in this division shall be construed to authorize the disclosure of any record containing personal information, other than to the subject of such records, in violation of any other law.

(d) Nothing in this division shall be construed to deny or limit any right of privacy arising under Section 1 of Article I of the California Constitution.

(e) Nothing in this division shall be construed to revoke, modify or after in any manner any statutory provision or any judicial decision which:

(i) Authorizes an individual to gain access to any law enforcement record; or

(ii) Authorizes discovery in criminal or civil litigation.

(f) None of the provisions in this division shall apply to any records that are public records as defined in Chapter 3.5 of Division 7 of Title 1 of the Government Code (Government Code § 6250 et seq.).

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-11. Procedural rule making by agency.

Any agency proposing a rule change shall agenda the item on the Board of Supervisors' agenda for public hearing to enable interested parties to present their views. The Board of Supervisors' action shall be to reagenda for 30 days before final adoption by the Board of Supervisors.

(Ord. No. NS-300.288, § 1, 6-12-79)

Sec. A16-12. Civil remedies.

(a) An individual may bring a civil action against an agency whenever such agency does any of the following:

(1) Refuses to comply with an individual's lawful request to inspect pursuant to Subdivision (e)(1) of Section A16-8.

(2) Fails to maintain any record concerning any individual with such accuracy, relevancy, timeliness and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, opportunities of or benefits to the individual that may be made on the basis of such record, if, as a proximate result of such failure, a determination is made which is adverse to the individual.

(3) Fails to comply with any other provision of this division, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.

(b) In any suit brought under the provisions of Subdivision (a)(1) of this section:

(1) The court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from the complainant. In such a suit, the court shall determine the matter de novo and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld as being confidential, and the burden is on the agency to sustain its action.

(2) The court shall assess against the agency reasonable attorney's fees and other litigation costs reasonably incurred in any suit under this section in which the complainant has prevailed. A party may be considered to have prevailed even though he does not prevail on all issues or against all parties.

(c) Any agency that fails to comply with any provision of this division may be enjoined by any court of competent jurisdiction. The court may make such order or judgment as may be necessary to prevent the use or employment by an agency of any practices which violate this division.

Actions for injunction under this section may be prosecuted by the District Attorney in the name of the people of the State of California, whether upon his or her own complaint, or of a member of the general public, or by any individual acting in his own behalf.

(d) In any suit brought under the provisions of Subdivision (a)(1) or (2) of this section, the agency shall be liable to the individual in any amount equal to the sum of:

(1) Actual damages sustained by the individual, including damages for mental suffering.

(2) The costs of the action, together with reasonable attorney's fees as determined by the court.

(e) An action to enforce any liability created under Subdivisions (a) and (d) of this section may be brought in Santa Clara County within one year from the date on which the cause of action arises, except that where a defendant has materially and willfully misrepresented any information required under this section to be disclosed to an individual who is the subject of the information and the information so misrepresented is material to the establishment of the defendant's liability to that individual under this section, the action may be brought at any time within two years after discovery by the complainant of the misrepresentation. Nothing in Subdivisions (a) and (d) of this section shall be construed to authorize any civil action by reason of any injury sustained as the result of any information practice covered by this division prior to July 1, 1979.

The rights and remedies set forth in this division shall be deemed to be nonexclusive and are in addition to all those rights and remedies which are otherwise available under any other provision of law.

(f) A civil action shall not lie based upon an allegation that an opinion which is subjective in nature, as distinguished from a factual assertion, about an individual's qualifications, in connection with a personnel action concerning such an individual, was not accurate, relevant, timely, necessary or complete.

(g) Where a remedy other than those provided in Section A16-8 and this section is provided by law but is not available because of lapse of time, an individual may obtain a correction to a record under this division, but such correction shall not operate to revise or restore a right or remedy not provided by this division that has been barred because of lapse of time.

(h) Any person who intentionally discloses information, not otherwise public, which they know or should reasonably know was obtained from personal or confidential information maintained by an agency or from "records" within a "system of records" (as such terms are defined in the Federal Privacy Act of 1974 (P.L. 93-579; 5 U.S.C. 552a)) maintained by a federal government agency, shall be subject to a civil action, for invasion of privacy, by the individual to whom the information pertains.

In any successful action brought under this section, the complainant, in addition to any special or general damages awarded, shall be awarded a minimum of $2,500.00 in exemplary damages as well as attorney's fees and other litigation costs reasonably incurred in the suit.

The right, remedy and cause of action set forth in this section shall be nonexclusive and is in addition to all other rights, remedies and causes of action for invasion of privacy, inherent in Section 1, Article I of the California Constitution.

(Ord. No. NS-300.288, § 1, 6-12-79)

Editor's note--Ord. No. NS-300.265, § 2, adopted June 12, 1979, provided that §§ A16-12, A16-13 not be effective until Jan. 1, 1980.

Sec. A16-13. Penalties.

(a) The intentional violation of any provision of this division or of any rules adopted thereunder, by an officer or employee of any agency shall constitute a cause for discipline, including termination of the intentional employment.

(b) Any person who intentionally provides any record containing personal information to any unauthorized person in violation of any provision of this division shall be guilty of a misdemeanor and be fined not more than $5,000.00, or imprisoned not more than one year, or both.

(c) Any person who requests or obtains any record containing personal or confidential information from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.00, or imprisoned not more than one year, or both.

(d) The penalties set forth herein shall be deemed nonexclusive.

(Ord. No. NS-300.288, § 1, 6-12-79)

Note--See editor's note following § A16-12.

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