Releasing settlement information on a public employee’s termination
Q: I am seeking information from two public agencies related to an employee who was separated from both agencies. One agency released a settlement document with the employee in which she agrees to never again seek to accept employment with the county. The county has sought to demote her over and incident or incidents. She took an early retirement instead. The settlement document notes the demotion was ordered as a result of “incidents” but the county did not release any information about the nature of the incidents. As an aside, I know for a fact that the employee was the subject of an internal investigation in her department and a source close to the department told me the investigation resulted in two recommendations. It was recommended that the District Attorney file criminal charges against the employee, and it was recommended that she be fired immediately. Apparently, the DA declined to prosecute, but I am told by an excellent source that an exhaustive investigative report was prepared by the investigator. I need help in getting information descdribing the “incidents,” and getting a copy of the investigative report that lead to the order for demotion and, ultimately, to the woman being forced from county employment forever.
The woman was put on 8 months unpaid administrative leave before her voluntary retirement. During that time she took a job with another, distinct, public agency. After about five months in that job she was separated and the agency began advertising for her job. That agency has refused to release any information about what lead to her leaving its employ. How can I get them to release that information? My understanding is that the courts have consistently ruled when the issue came up that disclosure is in the public interest in cases about or related to discipline or termination for cause of any kind.
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 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 agencies taking some disciplinary action against the employee. Although it sounds like you have already requested, and have been denied, those records, it is not clear whether you have made your request under the California Public Records Act (PRA) and whether the agencies have cited any PRA exemption or other authority to justify their denial of those records.
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 agency.