A&A: School denies access to all info about coach fired amid rumors players’ were abused.

Q: I cover school sports for the local newspaper and recently a coach was fired amid rumors that he/she was abusive toward players. Apparently the schools  feel no obligation to answer questions on the troubling situation. When asked, they invoke the phrase “personnel matter” like a talisman, and won’t say anything beyond either “the coach remains employed here” or “the coach is no longer employed here.”

Am I out of luck in this case, or do I have grounds to request/demand more information? And a related question: How about the athletic “sections” that oversee interscholastic sports. I’m pretty sure they receive some sort of public money through the schools. Are they obligated to provide information on ongoing investigations of their member schools?

Any guidance will be greatly appreciated.

A: The school district that you cover is not the first to clam up when it comes to turning over information or records related to disciplinary actions involving employees.  Although there is, indeed, a “personnel” exemption contained in the Public Records Act that could be construed to exempt certain records about certain employees, using this exemption in a blanket manner to exempt all records regarding any school district employee – in particular, high-profile employees and/or employees who are in positions of trust, such as athletic coaches – runs afoul of the Act.

As a starting point, “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” is a public record, Gov’t Code § 6252, and “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record” except as otherwise provided in the Public Records Act. Gov’t Code § 6253.

In the situation you describe, it sounds like where a coach has been fired or disciplined for, let’s say, abusive behavior toward students, and you seek records (complaints, responses, investigations, etc.) regarding that action by the school district, you are told that the records are protected by the Public Records Act’s “personnel” exemption, which permits an agency to withhold “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c).

However, California courts have, on several occasions, found this exemption does not apply in certain situations involving school district 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).

A more recent case, Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4th 1250 (2012), takes this logic even further, concluding, in short, that the more reliable the complaint, the less important it is that the district employee was high-ranking, and conversely, for high-ranking officials, the less important it is that the complaint is reliable or corroborated.

In Marken, a parent requested records related to an investigation of a 9th grade math teacher two years earlier for alleged sexual harassment of a student.  Id. at 1256.

Although the school district was ready to produce the records, the teacher intervened, asking a court to issue injunctive relief that would have prevented the release of those records.  Id.  The teacher claimed that his right to privacy, as found in the state constitution, would be violated, and thus the records – consisting of those relating to the district’s investigation of the student complaint, as well as those regarding “substantial complaints” about the teacher’s improper behavior toward students – were exempt from disclosure.  Id. at 1256, 1271.

The teacher also argued that the allegations were not of a “substantial” nature, and were not based on “well-founded information,” and therefore not subject to disclosure under the Act – all arguments that the court ultimately rejected.  Id. at 1274-75.  Rather, the investigator had concluded that the acts alleged by the teacher “more likely than not did occur,” and appropriate action was thereby taken by the district.  Id. at 1275.

Moreover, even though a 9th grade math teacher “may not be a ‘high profile’ public officials, as was the school district superintendent involved in BRV, … the court in BRV found that designation relevant only to determine when accusations of misconduct against a public official, even if not well founded, might nonetheless be subject to disclosure.  And it is also true the charges against Marken did not involve allegations of violence or sexual abuse, as was the case in Bakersfield School Dist., supra.  But Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. …

In light of the investigator’s factual findings, the District’s conclusion based on those findings that Marken had violated its board policy prohibiting the sexual harassment of students and imposition of discipline, the exemption from mandatory disclosure in section 6254, subdivision (c), is inapplicable; and release of the investigation report and disciplinary record (redacted as directed by the superior court) is  required under the CPRA.  Under governing case law, summarized above, the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.”  Id. at 1275-76.

The argument above would seem to be even stronger as applied to high school athletic coaches.  They occupy positions of trust and responsibility.  Furthermore, they are highly visible and interface with the public to a significant extent, and parents entrust their children’s physical and emotional well-being to them for long stretches of time.  Where the public may be concerned about the behavior of these coaches toward their children, it seems that records related to complaints and investigations should be disclosed.

It is not clear from your email whether you have, in the past, formally requested public records about coaches.  The next time you would like information about a particular coach who has been disciplined or dismissed amidst allegations of abusive behavior, you might want to submit a formal request under the Public Records Act.  A sample PRA request letter can be found on the FAC website at: http://ift.tt/1cVQBU0.

The school district will then be required to respond to your request within 10 days (which may be extended, under certain circumstances), and in its response, should specify any exemptions that it is claiming, and how those exemptions apply to your request.  Also, if you submit your request in writing, you should receive a response in writing, which will give you a written record in case your paper decides to litigate the issue.  Based on the district’s written response, you can send an appropriate rebuttal, citing the case law above and applying it to the specific situation.

If the school district also raises student privacy in its response to you, you could respond that you are fine with the district redacting the names of the minors from any documents you receive.  (In the BRV case, the court noted that “the public’s interest … is not furthered by knowing the identifies of any of the students, parents, staff members, or faculty members interviewed or mentioned in the report,” and therefore directed that all names, home addresses, phone numbers, and job titles for these individuals be redacted before the report was released. BRV, Inc., 143 Cal.App.4th at 759.)

Finally, your response to a written refusal to produce records might also include a reminder to the school district that attorney’s fees are available to a successful plaintiff who is forced to bring a lawsuit to enforce disclosure under the Public Records Act.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC inquiries from news reporters and the public. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.