Q: In many California Counties’ Mental/Behavioral Health Departments brag they employ individuals with ”lived experience” of mental illness.
The claim is that these individuals bring an important perspective and enrich the workplace. Further, MH Departments claim this ”lived experience” is an added qualification to work in the mental health field.
Some Counties, state ”we have individuals with ’lived experience,’” but refuse to disclose who those individuals are.
Mental Health Advocates, such as myself, are very frustrated by this. We believe that employment of individuals with lived experience of mental illness is an important part of providing quality care. We agree they provide an important perspective. However, how can we know these Counties are telling the truth?
Since the County MH department claims it’s personnel possess this qualification, are they compelled to produce the names of these individuals?
If the County did not claim to employ individuals with this qualification, we would have no basis to request this private information. But, to make the claim with no records – besides a number – seems untransparent.
What is your advice? Should I have access to that data?
A: You have raised a difficult and specific legal question that cannot fully be answered with this hotline. But I will do my best to set out the general contours of the applicable law.
As you are likely aware, the Public Records Act, Govt Code section 6250 et seq., although generally requiring that the public have access to all records of state and local government, contains numerous exemptions.
Among these exemptions is Govt Code section 6254(c) which permits an agency to withhold “personnel, medical and similar files,” the disclosure of which would constitute and unwarranted invasion of privacy. Whether any invasion of privacy will be considered “unwarranted” is determined by balancing the public interest in privacy against the public interest in disclosure. These determinations are highly fact-specific.
As a general matter, an individual will have a very strong expectation of privacy in his or her medical information, perhaps especially, mental health history. And the public interest in honoring those reasonable and strong expectations of privacy is itself strong.
Your inquiry, however, raises the question of whether the counties, by boasting of the inclusion, have changed the standard public interest balancing – does the fact that there are strong policy implications to proving that certain employees have mental illness histories either augment the public interest in disclosure, or diminish the public interest in secrecy by lowering those individuals’ expectation privacy?
The best answer I can give you is “maybe.” Because this inquiry is fact-specific, the balance may well be different for each county for which you seek the records, and depend on the specific statements the county has made, or the promises of confidentiality given the employees.
One issue you are likely to confront is whether there is a public interest in knowing which particular employee has the lived experience of mental illness. That is, there may be a strong public interest in knowing that some number of employees have this experience without having to know the names of those employees.
So the disclosure of the fact there are, for example, three employees with such experience may be disclosable, but those specific employees’ names may not be. But in certain counties, there may be so few employees in the total pool, that it will not be possible to disclose even just the number of employees with such experience, without, in practice, revealing that specific employee has a history of mental illness.
I am sorry that I cannot give you a more definitive answer. But I hope this information has been helpful.
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.