Accessing a public employee’s resume
Q: A California state university employee committed resume fraud in securing job appointment. The chancellor’s HR office conducted an investigation and concluded the employee was guilty. We heard rumors that the employee was disciplined by the university. My questions are:
1. Is the disciplinary action on the employee by the university public record? 2. Is the employee’s resume public record? 3. Is the conclusion of chancellor’s investigation public record?
If so, who should the public contact to obtain them?
A: Under the PRA, government agencies need not disclose “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Govt. Code Section 6254(c). With respect to government employee’s resumes, in 1982 the Court of Appeal upheld an order that an agency disclose “such portions of [a particular employee’s] personnel file as are necessary to disclose his professional qualifications” or provide the equivalent information in a resume. Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788 (1982) (a copy of this opinion can be found at the link below). The court rejected the argument that disclosing this information would be an unwarranted invasion of the employee’s privacy, saying that “information as to the education, training, experience, awards, pervious positions and publications [of the employee] . . . is routinely presented in professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption.” Id. at 794.
With respect to disciplinary records of public employees, California courts have held that there is a strong public policy against disclosure of such records if the investigation revealed that the charges were groundless. (American Federation of State, County and Municipal Employees v. Regents of the University of California, 80 Cal. App. 3d 913, 918 (1978)) However, “where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes. . . .” (Id.). “Where complaints of a public employee’s wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well founded, public employee privacy must give way to the public’s right to know.” (Bakersfield City School District v. Superior Court of Kern County, 118 Cal. App. 4th 1041, 1045 (2004)). In the situation you describe, it sounds like the investigations resulted in the university taking some disciplinary action against the employee. As I mentioned, I suggest that you submit a request under the California Public Records Act (PRA) for the records you seek.
Under the PRA, the public has a right to inspect and obtain copies of documents collected or maintained by state or local agencies. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). In your request, you might want to remind the agencies of their legal obligation to justify a denial of a records request. A sample PRA request is available on CFAC’s website at: http://www.cfac.org/templates/cpraletter.html.
The ultimate recourse under the PRA in the event of an improper denial is to initiate litigation. It is sometimes helpful to remind the agencies that the prevailing parties in a PRA litigation are entitled to their attorneys’ fees. Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”). You might want to highlight this fact in your next communication with the university.