Q: How do I access city personnel files? Particularly performance reviews?
A: As you know, under the California Public Records Act (“PRA”), records in the possession of public entities are presumed to be public unless one of the Act’s enumerated exceptions to disclosure applies. The PRA exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c).
There has been considerable debate in recent years over what information related to public employees should be disclosable to the public. Concerns over employee privacy seem to have heightened and there seems to be a trend against disclosing information that was once available.
In an older opinion analyzing this exemption as it applied to personnel and other files of the San Francisco Bay Board of Pilot Commissioners, the attorney general concluded that the “unwarranted invasion of personal privacy’ referred to in subsection (c) of § 6254 would occur . . . when information is released which bore little or no relevance to the question of fitness for, or the performance of, official duties.” (53 Ops. Cal. Atty. Gen. 136 (1970)). This same view was echoed in an opinion interpreting the Act’s privacy exemption in the light of the federal courts’ view of the parallel exemption in the Freedom of Information Act: “The critical question is whether the information associates the person with the business of the public agency or with an aspect of the individual’s personal life.” (68 Ops. Cal. Atty. Gen. 73 (1985)). It sounds like the agency is taking the position that such reviews are more personal than business-related, but that does not seem to be a reasonable position.
However, please note that 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)).
Also note that 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.
You might consider submitting a second request for the documents you seek, requesting that the agency articulate the reasons for why disclosure of performance evaluations (if not part of disciplinary records containing well-founded complaints of a “substantial nature”) would constitute an unwarranted invasion of personal privacy in light of the California Attorney General Opinion cited above. A sample PRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html