Should complaints against belligerent councilman be public?

Answer

The city seems to be citing two separate exemptions here: the exemption that applies to personnel records, contained in Gov’t Code § 6254(c), and, possibly, the exemption that can be extrapolated to apply to attorney-client privileged communications, contained in Gov’t Code § 6254(k).

I will address each exemption in turn.

Personnel records: The first exemption covers “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c).

It is not unusual for agencies to claim this exemption whenever a public record implicates any issue related to an employee or public official, but by its own terms the provision is limited to the information whose disclosure would be an unwarranted invasion of personal privacy.

Where public records relate to verified misconduct on the part of a government employee or official, the public’s interest in learning about the misconduct and the government’s handling of it is generally given great weight and the individual’s personal privacy interests less weight. See, e.g., American Federation of State Etc. Employees v. Regents of University of California, 80 Cal. App. 3d 913, 918 (1978):

(there is a strong interest in not disclosing baseless allegations of wrongdoing against an employee, “[b]ut where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes; this is true even where the sanction is a private reproval. In such cases a member of the public is entitled to information about the complaint, the discipline, and the ‘information upon which it was based.’”).

Furthermore, California courts have tended to find this exemption inapplicable where records related to complaints or investigations of misconduct were found to be true, and where the public official complained of has a reduced expectation of privacy based on his or her position.

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 discussed varying degrees of the expectation of 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 city council members, who, as elected officials, are highly visible and interface with the public to a significant extent — and to a great degree, through the news media. Just as the public was concerned about the school superintendent’s behavior in BRV, the public here may be concerned about the behavior of this particular council member toward other city employees.

His actions at the city-owned clubhouse toward the waitress certainly could expose the city to a potential harassment lawsuit, which would presumptively be defended using taxpayers’ dollars.

Thus, even if the city didn’t take action to discipline the councilmember, the public probably has the right to know the justification for the city’s non-action.

The same is true with respect to the council member’s actions toward the general manager of the local transit agency. Such actions by a publicly elected official may cause the GM to be less effective in carrying out his duties.

Again, even if the city did not take action against the city council member, the public has a valid interest in knowing details of the incident, as well the city’s conclusions regarding whether any misconduct took place on the council member’s part.

Indeed, it might not matter whether the council member was actually disciplined or not, and the city should not be able to invoke the excuse that the records are not required to be released because it determined that the council member’s actions did not rise to some level of harassment (as it seems to be claiming with respect to the incident involving the waitress).

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.

Furthermore, even though the city might have determined that, with respect to the restaurant incident, his conduct did not rise to the level of harassment, the complaint lodged against him still may have been well-founded, i.e., he may have actually yelled at this waitress, as alleged, which prompted the investigation.

Attorney-client and attorney work-product privileges: Based on the city’s reference to the Roberts case, it appears that it may be invoking the the attorney-client privilege, which stems from Government Code § 6254(k), which states that “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” (It’s also possible that it is citing this exemption in reference to federal constitutional privacy principles, in which case, the analysis would be similar to that discussed above.)

Under Evidence Code sections 954 and 955, confidential communications between lawyer and client are privileged and do not have to be disclosed. Also, materials created by an attorney in the course of representing a client, known as “work product,” are generally protected from disclosure, particularly those that reflect an attorney’s conclusions, opinions, legal research or theories. Code of Civil Procedure § 2018.030. The attorney-client exemption not only covers communications that are made pursuant to pending litigation, but also legal advice even where no litigation is threatened. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993).

This exemption, however, should not be construed broadly, but rather interpreted narrowly in the interest of disclosure. For example, the mere presence of legal counsel at a closed session meeting does not render discussions that take place during that meeting “confidential.” Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 907-08 (1984).

Other kinds of work product, such as factual information gathered by an attorney, is given only qualified protection and may be subject to disclosure if a sufficient need is shown. Cal. Civ. Pro. § 2018.030. Thus, while any communication between the agency and its attorney can be withheld pursuant to this privilege, any other documents that do not constitute communication and that do not constitute attorney-work product would not be covered by the privilege, even if such documents were sent to the agency’s attorney.

It is possible that, it is not covered by the attorney-client or attorney work-product privileges, even if the city’s attorney reviewed the report or discussed it with officials. It is arguable that even if the attorney did prepare the report, it is not covered by the attorney work-product privilege, particularly if such reports are prepared by the city as a matter of course when complaints such as the ones you describe are lodged against public officials and employees.

You may want to write to the city, stating that you do not believe that the justifications cited for nondisclosure of the reports are legally sound, and would like further explanation as to the specific reasons why these particular exemptions apply.

(Such an explanation is statutorily required under Gov’t Code § 6253(c), which states that each agency, “upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therfor.”) Also, to the extent that any portion of the records that you seek are exempt from disclosure, the agency must make “Any reasonably segregable portion of a record … available for inspection.” Finally, you may want to point out that, should the city continue to maintain that the reports are exempt from disclosure, and the newspaper decides to file a writ of petition in the Superior Court to compel disclosure of the report, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. Gov’t Code

You can find additional information on the Public Records Act on the FAC’s website at
https://firstamendmentcoalition.org/category/resources/access-to-records/

Holme Roberts & Owen 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.