Q: An elementary school principal was forced to resigned after a closed session meeting with the school board. Board members say they CAN’T talk about the decision. I made a written request for the files. They say they don’t have to show me the file’s under government code 6250. I don’t believe that’s true. Most of the employees at the school agree with me, but cannot speak up.
A: There seem to be a couple of different issues related to your inquiry. First is whether the principal’s closed-session meeting with the school board comported with California’s open meeting law, known as the Brown Act. The second is whether the files you requested are subject to disclosure under California’s Public Records Act.
Brown Act: The Brown Act provides for closed sessions for certain personnel decisions:
(1) … [N]othing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.
(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.
(3) The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.
(4) For the purposes of this subdivision, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. … Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.
Gov’t Code § 54957(b) (emphasis added).
The Brown Act requires bodies to “publicly report any action taken in closed session and the vote or abstention on that action of every member present,” specifying particular procedures based on the justification for the closed session. Gov’t Code § 54957.1(a).
For closed sessions authorized for personnel decisions, the Brown Act provides that
“[a]ction taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.” Gov’t Code § 54957.1
Note also that the Brown Act says that “[a] person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” Gov’t Code § 54963.
For purposes of this section, “‘confidential information’ means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter.” Id. In other words, those who attend the closed session might have to be careful about disclosing information from the closed session without authorization from the commission (with the exception, of course, of information that is required to be reported out under Gov’t Code § 54957.1).
Thus, it would appear that the school board would be required to announce that the principal resigned in open session. However, it does not appear that much more in the way of details would be required to be released under the Brown Act.
Public Records Act: Whether or not files or other records related to this incident that are in the possession of the school district or school board are disclosable is within the purview of the Public Records Act. Under the Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
As a preliminary matter, you state in your inquiry that the school district is invoking Gov’t Code § 6250 as justification for withholding the records. This particular Government Code section is merely the Public Records Act’s preamble, and does not contain any specific exemption that justifies withholding the requested records.Rather, this section states that,
“In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning hte conduct of the people’s business is a fundamental and necessary right of every person in this state.” Gov’t Code § 6250.
To the extent the school district is invoking “privacy” as justification for withholding the records, there is a specific exemption for “personnel” records that public agencies routinely invoke when they believe a request seeks information pertaining to identifiable public officials or employees that is private or controversial. Gov’t Code § 6254(c).
However, this exemption — which was developed to protect intimate details of personal and family life, not official business judgments and relationships, Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004) — applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code Section 6245(c) (emphasis added).
Information such as employee performance goals may be exempt from disclosure, at least if individually tailored and kept confidential. Versaci v. Superior Court, 127 Cal. App. 4th 805 (2005) (performance goals of a community college district superintendent were exempt from disclosure, based in part on the fact that the superintendent had retired, so the court found that there was no public interest in knowing what the goals were).
On the other hand, California courts have established a fairly liberal standard for disclosure of public records relating to complaints or investigations of misconduct by public employees. For example, in BRV, Inc. v. Superior Court, 143 Cal.App.4th 742(2006), the court found an investigative report into a school superintendent’s alleged misconduct must be disclosed, observing:
“[M]embers of the public were greatly concerned about the behavior of the city’s high school superintendent and his governing elected board in responding to their complaints. Indeed, from the public’s viewpoint, the District appeared to have entered into a ‘sweetheart deal’ to buy out the superintendent from his employment without having to respond to the public accusations of misconduct. The public’s interest in judging how the elected board treated this situation far outweighed the Board’s or [superintendent’s] interest in keeping the matter quiet. 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 [the superintendent’s] interest in preventing disclosure of the … report.” Id. at 759.
In coming to this conclusion, the court discusses varying degrees of the expectation privacy that a public employee has with respect to his or her position. A school superintendent has a “significantly reduced expectation of privacy in the matters of his public employment,” and as a public official, knows that “his performance could be the subject of public, ‘vehement, caustic, and sometimes unpleasantly sharp attacks. … .'” Id. at 758, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
It seems that this same logic would apply to a school principal. Unlike other categories of school employees, principals are highly visible and interface with the public to a significant extent. Of course, this assumes that there was some sort of investigation into the principal’s conduct prior to his resignation. Although courts in cases that pre-date BRV determine whether complaints are disclosable based upon whether the complaint itself reveals allegations of a substantial nature, and there is reasonable cause to believe the complaint is well founded, see Bakersfield City School District v. Superior Court, 118 Cal.App.4th 1041, 1046 (2004), the BRV court found these cases distinguishable because they didn’t “deal with a public official in the position of [the superintendent] who … had a significantly reduced expectation of privacy in the matters of his public employment.” BRV, Inc., 143 Cal.App.4th at 758. (Consequently, the position of the school employee complained about in the Bakersfield case is not identified.)
In any case, you might want to consider two questions when determining whether a particular record is exempt under the personnel exemption: (1) Does the record associate the person in question with an aspect of the individual’s personal life rather than with the business of the pbulic agency or the individual’s performance as a government employee; and (2) would release of the information constitute an unwarranted invasion of personal privacy? Both questions should be answered in the affirmative for the exemption to be applicable. Also remember that the burden to justify withholding a record or a portion thereof lies with the agency seeking to deny access; it is not enough merely to label the file a “personnel record.”
One factor in all of this might be the principal’s attitude towards disclosing relevant information. If he does not want the information kept secret, that would make it harder for the agencies to justify secrecy. But, as discussed above, there may be grounds for disclosure even if the principal prefers to keep everything in the dark.
As such, you might want to write to the agency once again asking that it set forth, in writing, the specific exemption that it is claiming justifies nondisclosure of the records, which will then give you the opportunity to respond with legal arguments as to why the records you seek should be disclosed. Keep in mind that under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009). Thus, if there are any valid exemptions that apply to the records that you seek, but the agency could, for example, redact that information, then the agency should release the records in a redacted form.
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.