Court Affirms Government Employee’s Right to Bring Suit to Prevent Disclosure of Private Information
Striking the proper balance between employee privacy and public transparency is often difficult, particularly when a governmental employee faces allegations of workplace misconduct. This issue was recently addressed in the case of Marken v. Santa Monica-Malibu Unified School District. Marken confirms that reverse-California Public Records Act actions are available to protect governmental employees who believe that their private information will become public pursuant to the California Public Records Act (CPRA). (Marken v. Santa Monica-Malibu Unified Sch. Dist. (2nd Dist., January 24, 2012) 202 Cal.App.4th 1250.)
Marken represents another addition to the already significant list of exceptions to the general rule of public transparency under the CPRA.
Marken is the only appellate court ruling in California that squarely addresses the conflict between a governmental entity’s duty to provide the public access to public records and the right of an individual to sue a governmental entity to prevent disclosure of confidential information. The ruling is of particular interest to governmental entities and their employees, as it helps define the accepted procedures and standards for governmental employees seeking to protect their privacy.
Californians enjoy a constitutional guarantee under their state constitution regarding public records; they have a “right of access to information concerning the public’s business.” That right is also reflected in the CPRA, which provides a legal basis for, and limits upon, accessing public records in California. Though there are certain types of documents that are exempt from production under the CPRA, those exemptions can be waived in most instances by the public entity responding to a CPRA request. For example, governmental agencies are not required to produce personnel, medical, or similar files in response to a CPRA request, but may choose to do so, with limited statutory exceptions, without approval of the affected employees.
The CPRA specifically authorizes a party to bring a “CPRA action” if a governmental entity improperly withholds records in response to a CPRA request. The CPRA does not, however, provide an individual with a legal basis to bring a lawsuit to prevent disclosure of public records that potentially include confidential information.
Nonetheless, Marken holds that California law implicitly allows for such reverse-CPRA actions by affected employees. Marken shows that such actions do not arise from the text of the CPRA, as the phrase “reverse-CPRA” might suggest. Instead, the right to bring a reverse-CPRA action arises from a more general provision of law that allows anyone to bring a civil action to compel a governmental officer to take a particular action that is required by the law: Code of Civil Procedure Section 1085. Therefore, as to CPRA requests, Marken holds that pursuant to Section 1085, an affected employee can affirmatively compel a governmental employer to withhold personnel records.
Although the plaintiff in Marken was able to establish that he had an implicit right to bring a reverse-CPRA action, the court held that his particular circumstances did not warrant compelling his employer to withhold disclosure of such records. The plaintiff, a high school teacher, was alleged to have sexually harassed a student, and the school district hired an investigator to help determine if the teacher had violated the relevant sexual harassment policy. Ultimately, the investigator provided the school district with a report concluding that it was “more likely than not” that some amount of the alleged conduct did occur. The teacher was not fired from his job after the report was provided to the school district. Two years after the report was created, however, the school district gave notice to the teacher that it intended to publicly release records related to the harassment investigation in response to a CPRA request made by a parent of two students at the teacher’s school.
Thus, although the school district may have had the legal right to withhold the documents under one of the CPRA’s exceptions to disclosure, the school district signaled to the teacher that it planned to release the documents to the parent seeking that the documents be released. In response, the teacher brought his reverse-CPRA action to prevent disclosure of the report. The teacher contended the disclosure not only violated his right to privacy in his personnel records, but that the disclosure should not occur because the complaint of harassment was neither substantial nor well founded.
The Marken court disagreed. It freely admitted that a public employee like the teacher has a significant privacy interest in type of records at issue, but the court went on to state that an invasion of that right can be justified by a competing interest. In this instance, the court held that the public’s right to know, as to both the conduct underlying the allegations and the school district’s response thereto, outweighed the teacher’s privacy interest in keeping the report and his disciplinary record out of public view. Marken suggests, however, that had the allegations against the teacher proven trivial or groundless, the balance might have tipped in favor of non-disclosure. But because the investigator’s findings and the district’s reprimand were considered to be sufficient evidence that at least some of the allegations were well founded, the teacher’s reverse-CPRA action failed.
Marken shows that even if a governmental entity chooses to waive a potentially applicable exemption to the CPRA and release public records regarding employee discipline, an employee still has remedies, and such remedies may lead to a costly reverse-CPRA action. Because production of governmental personnel records is often exempted under the CPRA, as a result of Marken, governmental bodies will likely need to more carefully weigh the benefit of non-mandatory disclosures. Where privacy rights, such as privacy in personnel records, may spawn costly reverse-CPRA actions as a result of disclosure, government employers may be more hesitant to more readily disclose such information in response to a CPRA request, even if there appears to be a compelling interest to the public in making the disclosure.
If you want to challenge or defend a decision to release records under the CPRA, Michel & Associates, P.C. can assist you.