A&A: Is gender of foster care staff public information?

Q: We are investigating sexual abuse in a foster care shelter. We requested the gender for two staff members because they have ambiguous names. The county asserted that Section 6254(c), the personnel records exceptions applies.

Staffing decisions at the facility are made based on gender (male staff members are not supposed to oversee female resident’s baths), which makes their gender material to their employment. The county attorney has been unwilling in the past to address our responses to their objections to our requests; even when we have legal support, so I will have to re-request.

Do you have anything that can help us gain the information when we reapply?

A: As you are aware, the Public Records Act does contain an exemption for “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”  Gov’t Code § 6254(c).  Although this exemption is invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private or controversial, it was developed to protect the intimate details or personal and family life, not official business judgments and relationships. Bakersfield City School Dist. v. Sup. Ct., 118 Cal. App. 4th 1041, 1045 (2004); Braun v. City of Taft, 154 Cal. App. 3d 332, 343-44 (1984).  Thus, when determining whether a particular portion of a personnel file may be disclosed, courts first consider whether disclosure of the information would compromise substantial privacy interests, and, second, whether the potential harm to privacy interests from disclosure outweigh the public interest in disclosure (the balancing test referenced by the university in its response to your request).  BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755 (2006).

In the situation you describe, it does not seem that disclosing the identified “male or female” gender of a specific county employee would violate the “substantial
privacy interests” that the Public Records Act seeks to protect, particularly since this information is not usually a private fact that is hidden from others.  If the county had photographs of these individuals, and you were shown these photographs, you probably would be able to figure out whether these individuals are male or female from those records (and such photographs, I would think, would be required to be disclosed under the Act).  Assuming that the county’s employment records for these individuals includes a record of this, it would seem that this information should be disclosed to you, even if other parts of their personnel records that would otherwise fall within the exemption would not.

You should ask county counsel to explain how this information fits within the personnel exemption – specifically, how it meets the two prongs of the BRV test above (as counsel should have done in the first place).

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.