CPRA request for disclosure of evidence related to School District misconduct case

Answer

Under the California Public Records Act, “Personnel…or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy,” are exempt from disclosure. Id. at 6254(c).

When determining whether 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.  BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 755 (2006).

Given that the records pertain to you, it does not seem disclosure would lead to an unwarranted invasion of personal privacy.

Additionally, California Labor Code section 1198.5(a) requires, “[e]very current and former employee…has the right to inspect the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.”

Employers are required to maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment. Id. at § 1198.5(c)(1).  Employers must make these personnel records available “not later than 30 calendar days from the date the employer receives a written request…” Id. at § 1198.5(b).

If an employer fails to permit inspection, a former employee may recover a penalty of $750.00 from the employer, may bring an action for injunctive relief to obtain compliance, and may recover costs and reasonable attorney’s fees in such an action through the court process.  Id. at § 1198.5(k)-(l).

However, Section 1198.5 does not apply to “records relating to the investigation of a possible criminal offense.” Id. at §1198.5(h)(1).

You might want to send a follow-up letter to the District reminding it of the time limits within which to respond to your request under both the California Public Records Act and Labor Code section 1198.5, and letting them know you are willing to work with them to ensure they can focus on finding the records you seek.  The District has a duty to assist you in making a focused and effective request that reasonably describes identifiable records, and to provide suggestions for overcoming any practical basis for denying access to the records or information sought.  Gov’t Code § 6253.1(3).

You might also want to remind the District that attorneys’ fees are available should you be required to bring a lawsuit to enforce your rights under the Labor Code (see section 1198.5(k)-(l) above) or the Public Records Act.  If an agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Gov’t Code § 6259.

Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action.  Attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d) — a fact that you may want to draw the District’s attention to in your next correspondence.  Additionally, it sounds like you may want to seek counsel to assist you in attempting to get your teaching credential renewed.

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.