Q: I was recently not selected for a position at my place of employment, a California State University. Two individuals were hired that appear to be less qualified than me. I sent a request for interview notes because the chair of the interview panel expressly told me that only the responses given in the interview were used to determine who to offer the position to. My request for interview notes was denied.
Here is the official response from the university, Cal. Gov. Code § 6254(c) exempts personnel, medical or similar records, where disclosure would constitute an unwarranted invasion of privacy. These records are also subject to the deliberative process privilege, that protects decision-making processes. Cal. Gov. Code § 6255, the balancing test exemption, permits withholding a record if the public interest in nondisclosure outweighs that served by disclosure in order to protect the deliberative process. Wilson v. Superior Court (1997) 51 Cal.App.4th 1136; see also , California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
What recourse do I have to compel these notes? I believe they will demonstrate that I was a more qualified candidate.
A: As a preliminary matter, please note that the Public Records Act covers records, and not information. Thus, to the extent that answers were only given verbally in the interviews, the university would not be required under the Act to disclose that information. That said, if a university official was taking interview notes, or if any other recording was made of the answers given, then those documents are presumptively required to be disclosed under the Act unless some exemption applies.
The Act does contain an exemption for “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. Gov’t Code § 6254(c). Although this exemption is invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial, it was developed to protect the intimate details or personal and family life, not official business judgments and relationships. Bakersfield City School Dist. v. Sup. Ct., 118 Cal. App. 4th 1041, 1045 (2004); Braun v. City of Taft, 154 Cal. App. 3d 332, 343-44 (1984).
Thus, when determining whether a particular portion of a personnel file may be disclosed, courts first consider whether disclosure of the information would compromise substantial privacy interests, and, second, whether the potential harm to privacy interests from disclosure outweigh the public interest in disclosure (the balancing test referenced by the university in its response to your request). BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755 (2006).
In the BRV case, the court held that information as to the education, training, experience, awards, previous positions and publications of the (employee) is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption. BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 759 (2006).
However, job applications may be exempt if their disclosure would deter applicants from providing complete and accurate information. Wilson v. Superior Court, 51 Cal. App. 4th 1136 (1997).
In your situation, it would seem that answers given to questions related to one’s fitness for a public job might not necessarily constitute the type of public invasion into one’s personal life that this exemption was intended to protect.
That said, even if the privacy interest is not as great as that in the BRV case, it might be that if the individual whose privacy is at stake is not a high-level or high-profile employee, then there is a less compelling argument that any recordings of answers the employee gave in his or her interview would be required to be released under the Act. (The employee involved in the BRV case was a school superintendent. Because of [the superintendent’s] position of authority as a public official and the public nature of the allegations, the public’s interest in disclosure outweighed [his] interest in preventing disclosure of the [investigation] report.
Furthermore, per the Wilson case, the university might argue that disclosure of the answers to the interview questions might discourage future prospective job seekers from being frank with the interviewers. As you can see, it is difficult to see which way a court might rule on this point.
As for the deliberative process privilege, this privilege may allow nondisclosure of records revealing the deliberations of agency officials, or information relied upon by government officials in making decisions that they would not otherwise receive if the information were routinely disclosed. This privilege again requires a balancing to demonstrate “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. Gov’t Code § 6255(a).
Overall, this exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.
Given all of this, you might want to write to the university to request that it set forth its specific reasons for withholding any documents that contain references to the interviewee’s answers (i.e., explain how the facts here tip in favor of nondisclosure). Additionally, if you are willing to give something up, e.g., offer that the university redact the names associated with specific answers, you might consider doing so in order to show that you are reasonable and willing to work with the university to come to a satisfactory solution.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.