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August 6, 2014

Court of Appeal Finds Teachers’ Performance Scores Need Not Be Disclosed Pursuant to a Public Records Act Request

The Second District California Court of Appeal issued its decision  on July 23, 2014 in a much-watched case concerning a Public Records Act (“PRA”) request to obtain individualized teachers’ “scores” (including the teachers’ names) with respect to students’ standardized test performance.  (Los Angeles Unified School District v. Superior Court, Case No. B251693.)  The trial court judge had ordered the Los Angeles Unified School District (“LAUSD”) to disclose individual teachers’ names along with their scores.  LAUSD appealed.

LAUSD had (in conjunction with researchers) developed a statistical model designed to measure a teacher’s effect on his/her students’ performance on the California Standards Tests (“CSTs”).  The statistical model yielded a result called the Academic Growth Over Time (“AGT”) score, which compared students’ actual CST results with the statistical, predicted results.  The statistical model based its prediction on various factors, including the particular students’ past CST scores, gender, race, English Learner status, and special education needs.  Each teacher was assigned one of the following scores:

(1) Far below predicted;
(2) Below predicted;
(3) Within predicted range;
(4) Above predicted; or
(5) Far above predicted.

The collective bargaining agreement between LAUSD and the United Teachers of Los Angeles (an intervener in the case) provided that teachers’ AGT scores were to be treated as confidential personnel records.  The Court of Appeal did not find this fact dispositive, noting that “the promise of secrecy cannot always shield a public record from disclosure.”

LAUSD released much of this data to the public, but did not disclose individual teachers’ names with their respective AGT scores.

The Los Angeles Times (“Times”) submitted a PRA request (pursuant to Gov. Code, § 6250 et seq.) requesting AGT scores for each LAUSD teacher by name as well as the locations where those teachers are assigned.  LAUSD denied the Times’ PRA request, claiming two exemptions to the PRA:  the privacy exemption under Government Code section 6254, subdivision (c) [“[p]ersonnel . . . or similar files, the disclosure of which would constitute an unwarranted invasion of  privacy”] and the “catch-all” exemption set forth in Government Code section 6255, subdivision (a) [“on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  (Emphasis added.)]

The Court of Appeal first analyzed the “catch-all” exemption in Government Code section 6255(a).  Under the “catch-all” exemption, a court answers the following questions:

(1) Is a public interest served by  not disclosing the records?
(2) If yes, is a public interest   served by disclosing the records?
(3) If yes to both, does (1) “clearly outweigh” (2)?

Public Interest Served by Not Disclosing the Records
LAUSD presented evidence of the public interest served by not disclosing the records through a declaration of LAUSD Superintendent John Deasy.  Deasy opined that disclosing names would:  cause discord in the workplace by spurring comparisons between teachers, negatively impact LAUSD’s potential to recruit new teachers to the district, result in other school districts stealing its teachers with high AGT scores, result in unbalanced teacher assignments as parents would battle to have their children assigned to high-scoring teachers, cause parents and students to lose confidence in low-scoring teachers, and present a risk of AGT scores being presented as evidence in teacher discipline and dismissal cases.

The Court of Appeal also referred to “common sense and the human experience” and noted it did not need an expert opinion to understand the possible impact of releasing individualized teachers’ AGT scores on parents’ behavior.  Common sense indicated that parents would want their children assigned to teachers with better AGT scores.

Thus, the Court of Appeal agreed with LAUSD that there were public interests served by not disclosing the requested information.

Public Interest Served by Disclosing the Records
The Court of Appeal noted there was little doubt that the public had an interest in viewing LAUSD’s teachers’ AGT scores as a whole.  Yet the Court of Appeal found the trial court had incorrectly analyzed this issue as whether the public had an interest in obtaining teachers’ scores rather than the actual narrow issue in the case, which was whether the public had an interest in knowing the AGT score of an individual teacher by name.  LAUSD had already provided its teachers’ scores en masse to the public.

The Court of Appeal recognized that the purpose of the PRA is to allow the public to assess the public agency’s performance of its duties.  The Times argued that knowing an individual teacher’s score would help parents understand if their child’s CST performance reflected an issue with the child, the instruction, the school, or something else.  The Court of Appeal stated, “just because a member of the public has an interest in something does not necessarily make that interest one of public concern.”  The Court of Appeal did not agree with the Times that disclosing individual teachers’ AGT scores along with their names helped the public to assess LAUSD’s performance.  Thus, the Court of Appeal found parents’ interest in their particular children was a private interest that was not served by the PRA.

Ultimately, the Court of Appeal held that releasing the AGT scores of individual teachers, by name, would seriously interfere with the functioning of LAUSD, and therefore the requirements for meeting the “catch-all” exemption were met.

The Court of Appeal contrasted the information requested with cases wherein PRA requests seek the names and salaries of public employees, or information regarding alleged incidents of misconduct by certain public employees.  For instance, when names or salary information is requested, such information does not have “bearing on the performance or effectiveness of any given” public employee in doing his/her job; in contrast, “the AGT scores are intended to measure teacher effectiveness, are anything but innocuous, and would interfere with the functioning of the District in a number of different ways.”  Even in cases where information is requested in relation to certain instances of alleged misconduct by a public employee, releasing such information may shed light on a public agency’s policies or procedures, which is a public interest served by the PRA.

Exemption to the PRA for Personnel or Similar Records
Interestingly, the Court of Appeal did not decide whether the teachers’ AGT scores were exempt from disclosure under the personnel records exemption to the PRA.  Since the “catch-all” exemption allowed the records to be withheld, the court expressly declined to “address or decide whether disclosure of these scores would constitute an unwarranted invasion of teacher privacy making them exempt under section 6254, subdivision (c).”

From a legal perspective, a stronger argument can be made that the release of the AGT scores would be prohibited under the personnel records exemption because these scores could be viewed as analogous to an evaluation, and in analyzing the “catch all” provision of the PRA, the Court of Appeal already made the finding that the scores are “intended to measure teacher effectiveness,” i.e., they serve as an evaluation instrument.  Under the personnel records exeption to the PRA, a court would be very unlikely to order a wholesale release of teacher evaluations absent specific issues or public interest relating to a specific teacher.

Overall, the Court of Appeal found LAUSD met its burden of showing disclosure would be detrimental to its ability to perform its statutory duties, separate and apart from whether disclosure is prohibited under the privacy exemption for personnel records.

The Court of Appeal’s decision will support the efforts of some school districts to create evaluation instruments using student test data to assess performance.  This decision may also support school districts that have received federal grant monies to fund new value-added teacher evaluation systems.


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