Documents relating to employment
Q: I applied for a job with a public transit agency in California. I did not get the job and would like to know if my previous employer in another state gave me a negative reference. The agency has refused to give me this information (saying it is against their policy), though I believe it is my right to have access to it. My attorney believes this is covered by FOIA, though state law may supercede. Can you advise how I should proceed?
A: Access to the records of local government agencies in California is governed by the California Public Records Act, Government Code sections 6250 et seq. Unless the agency involved is a federal agency, the federal Freedom of Information Act does not apply.There is no express exemption from disclosure for a record constituting a communication regarding the qualifications of a job applicant. However, Government Code section 6254(c) exempts from disclosure “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of privacy.”
In addition, Government Code section 6255 allows an agency to withhold other records upon showing 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.”Under these provisions, the transit agency may decline to provide the records you are requesting. Whether such an action would be justified is not entirely clear, but there is a reasonable argument that the records are exempt from disclosure.Keep in mind that if the record must be provided to you, it must be provided to anyone who requests it. While other provisions of state law may give the person who is the subject of a public record a right to obtain a copy of such information, the Public Records Act itself does not. “In this connection, it should be noted that if the record is a public record all persons have access thereto as permitted by Act and a person who may be the subject of the particular record sought does not, because he is personally affected, have any greater right than any person to examine the record.” Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668 (1977).
You may want to determine whether California law other than the Public Records Act provides a right of access to records regarding your job application. You may be entitled to such information from the originating party as well as the government agency to which it was sent. If you are or become involved in litigation, you would probably be able to obtain the information through discovery.