Kathryn Meola
legal insights
by kathryn meola
The changing tide of the California Public Records Act and the personnel exemption

he California Public Records Act requires that all public agencies respond to requests for documents by the public, unless an exemption applies. One such exemption is personnel records; however, a common misperception is that all personnel files are exempt from disclosure.

In fact, the exemption provided for personnel material in the CPRA is narrowly tailored and exempts only “[p]ersonnel, medical or similar files, the disclosure of which would constitute an invasion of personal privacy and personnel records when, from the facts of the particular case, the public agency can demonstrate that the public interest served by not disclosing the record outweighs the public interest served by disclosure of the record.” (Cal. Gov’t Code § 6254(c) and § 6255(a)) Thus, when a CPRA request seeks the disclosure of personnel files, the responding agency may only refuse to provide records that fit into either of those exemptions. A public agency therefore must perform an analysis to determine whether (1) the requested contents of the personnel files implicate personal privacy, and (2) the invasion of privacy is unwarranted under the circumstances.
Established precedent
For more than a decade, California courts have largely required the production of personnel files in response to a CPRA request. In BRV v. Superior Court (2006), a school board commissioned an investigative report analyzing allegations of misconduct by the superintendent. After receiving the report, the school board entered into a separation agreement with the superintendent in exchange for terms of payment and a promise to keep the report confidential. A media organization subsequently requested the report under the CPRA and was denied access. The trial court denied the writ of mandate on the ground that the superintendent’s privacy interest outweighed any public interest in disclosure and noted that the report generally tended to exonerate the superintendent. On appeal, the Appellate Court noted the public concern that the district and the superintendent had entered into a “sweetheart deal” and concluded that the public’s interest in judging how the elected board resolved the situation “far outweighed” any privacy interest. Thus, the Appellate Court ruled that even though the investigator has concluded that most of the allegations were not sufficiently reliable and the superintendent was exonerated of all serious allegations of misconduct except for those related to outbursts of anger, the release of the report was warranted, with all names, home addresses, phone numbers and job titles redacted.

In Marken v. Santa Monica-Malibu Unified School District (2012), a high school math teacher received a written reprimand for violating the district’s policy regarding sexual harassment of students. The teacher had been placed on administrative leave for one month pending the investigation and was returned to the classroom at the investigation’s conclusion. Two years after the written reprimand was issued, a parent made a CPRA request for the investigation report. The district determined that the investigation report was likely not exempt from the CPRA and notified the teacher of its intent to release the document. The teacher filed a claim for injunctive relief, seeking a court order prohibiting disclosure of the records as an unwarranted privacy violation. On appeal, the Appellate Court stated that “[a] public sector employee, like any other citizen, is born with a constitutional right of privacy” and that right is not waived in return for the “‘privilege’ of public employment,” unless a compelling need is demonstrated. The court ordered the disclosure of the records, holding that a classroom teacher “occupies a position of trust and responsibility,” and “the public has a legitimate interest in knowing whether and how the district enforces its sexual harassment policy.

Similarly, in Caldecott v. Superior Court (2015), a district’s director of human resources (Caldecott) filed a complaint against the superintendent alleging the creation of a hostile work environment. Five to six weeks after the complaint was made, the superintendent, with the support of the governing board, terminated Caldecott without cause. Caldecott claimed that the district conducted no investigation into his complaint and that he was terminated in retaliation for filing the complaint against the superintendent. Caldecott filed a CPRA request seeking documents relating to his complaint and any investigation conducted by the district. The district refused to produce the records and the superior court denied Caldecott’s petition, ruling that Caldecott already possessed the documents, making his request moot. The Appellate Court rejected the notion that a person cannot make a CPRA request for documents they already possess, and further concluded that the public interest in disclosure of the documents outweighed any privacy interests, stating: “There is a strong public interest in judging how [the superintendent] responded to Caldecott’s claims, especially in light of his decision to almost immediately terminate Caldecott without cause. Likewise, there is the same strong public interest in assessing how [the] School District’s elected board treated the serious misconduct allegations against its highest ranking administrator.”

Reversing the trend
In the most recent case on this subject matter, the tide may have turned in evaluating the personnel exemption under the CPRA, depending on the seriousness of the circumstances and the position of the governmental employee. In Associated Chino Teachers v. Chino Valley Unified School District, the school district received two separate complaints from parents/guardians of student-athletes regarding a career volleyball coach’s conduct, namely, yelling and belittling student-athletes in public and holding practice at the coach’s home. The school district investigated the complaint, and at the conclusion, the volleyball coach received a letter of warning and a letter of concern, neither of which were placed in her personnel file. The volleyball coach resigned from her coaching position. A media news outlet subsequently requested disclosure of any complaints and investigations against the former volleyball coach. The district believed that the complaints against the former coach were substantial in nature and well founded and notified her of its intent to release the disposition letters. The former coach objected, and the teacher’s union filed a petition asking for a court order prohibiting the disclosure. The trial court denied the petition and the union appealed. The Appellate Court reversed, finding that the CPRA does not require the production of the documents because the former coach’s privacy interests outweighed the public interest in their disclosure.
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In reversing the tide of the last decade, the Appellate Court reasoned that because the disposition letters contained personal information about the former volleyball coach, the documents qualified as “personnel records,” even though the documents were not kept in the former volleyball coach’s personnel file. The Appellate Court held that the decision about whether a document could be released to the public does not turn on the arbitrary circumstance of where the document is located, but rather it is the contents of the documents themselves that determine their confidential nature. Finding that none of the complaints against the former coach involved allegations of sexual misconduct, threats of violence, or violence, and that the former coach was not a “high profile public official” such as a superintendent who “ha[s] a significantly reduced expectation of privacy,” the former coach’s privacy interest outweighed the public’s interest in this case, and the Appellate Court ruled the disposition letters were exempt from disclosure.
What to consider when a CPRA request comes calling
  1. In summary, there are a few things to remember and/or consider when faced with a CPRA request for personnel file/record: Not all personnel files are exempt from disclosure under CPRA. The only personnel records exempted are those that contain information which, when disclosed, will constitute an unwarranted invasion of privacy.
  2. Ask the right questions when analyzing a CPRA request:
    1. Does the request implicate the personal privacy of an individual?
    2. If yes, what is the level of personal privacy involved — de minimis or substantial? The more substantial the personal privacy involved, the higher the concern that disclosure would be unwarranted invasion of privacy.
    3. A balancing test is required — Is the employee’s privacy interest in preventing release of the records outweighed by the public’s interest to have the records disclosed? Unless the answer is yes, the records are exempted from disclosure. Resolution of the test usually depends on the weight given to an employee’s privacy interest. Generally, the lower the public profile of an employee, the higher their expectation of privacy and their interest in preventing disclosure. The converse is also generally true. Employees with a higher public profile generally enjoy less expectation of privacy. Thus, for example, a lower profile public employee such as teacher or coach may be accorded a higher expectation of privacy to records related to a minor complaint than a superintendent or other senior “public official” whose conduct might attract keen public interest, due to the high public profile commanded by their position.
  3. Quite frequently, the analysis called for in responding to CPRA requests is complicated and sometimes difficult to navigate. When necessary, advice of legal counsel should be sought.
Kathryn Meola is General Counsel for CSBA and Director of the Education Legal Alliance

Some material for this article was reproduced with permission from the San Mateo County Counsel’s Office.

The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.