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January 30, 2012

Employee May Bring “Reverse-CPRA” Lawsuit to Challenge Release of Personnel Records; Requester May Intervene

On January 24, 2012, the court of appeal issued a ruling in a case involving a novel question of law: whether a public employee has the right to fi le a lawsuit to preclude his employer from releasing personnel records pursuant to a request under the California Public Records Act (CPRA), and the obverse issue, whether the party making the request may join or intervene in that legal action to protect his interest in disclosure of the requested records. In Marken v. Santa Monica-Malibu Unified School District (Jan. 24, 2012) 2012 WL 182000, the court answered both questions in the affirmative but denied the employee’s claim that an investigative report and resulting disciplinary document were confidential and not disclosable under the CPRA. Our firm represented the District in the action.


In October 2008 the mother of a female high school student complained that teacher Ari Marken had sexually harassed her daughter. The District retained an attorney to independently investigate the complaint. The investigator conducted interviews and prepared a report that included a summary of the evidence and findings regarding conduct she concluded “more likely than not did occur.” Based on these findings, the District issued Marken a written reprimand that stated he violated the District’s board policy prohibiting sexual harassment of students.The Superintendent informed the student’s mother the District had found Marken violated the sexual harassment policy and “appropriate action” had been taken.

In December 2010, Michael Chwe, the parent of two District students, made a request under the CPRA for records of the 2008 investigation and findings.The District advised Marken it planned to release the investigative report and the letter of reprimand as required under the CPRA. Marken, through an attorney, requested a one-month delay before disclosing the records; the District agreed and so informed Chwe. Marken fi led a complaint for injunctive and declaratory relief and petition for writ of mandate, alleging disclosure of his personnel records was not authorized under the CPRA and would violate his constitutional and statutory rights of privacy.

Chwe appeared at the hearing on the temporary restraining order, and later filed his own petition for writ of mandate, asking the court to compel the District to disclose the records. He also filed an application for leave to intervene as a “real party in interest” in Marken’s lawsuit. The trial court denied Chwe’s application, and he appealed.

The trial court granted Marken’s request for a temporary restraining order, barring the District from immediately disclosing the records, but then denied his request for a permanent injunction. Instead, the court confi rmed the District’s position that it was obligated by law to produce the records, and ordered the records to be disclosed unless Marken appealed the ruling, which he did.

The Court of Appeal’s Decision

The court of appeal confirmed the District was correct in its determination that the investigative report and letter of reprimand, based on a student’s complaint of sexual harassment against Marken, were disclosable records under the CPRA. In this respect, the court followed the reasoning of Bakersfield City School District v. Superior Court (2004) 118 Cal. App.4th 1041 and BRV, Inc. v. Superior Court (2006) 143 Cal. App.4th 742. These decisions held that although a public employee has a significant privacy interest in the information in his personnel file, the public interest in possible misconduct by public employees outweighs that privacy interest. When there is reasonable cause to believe a complaint against a public employee is “well founded” and “substantial in nature,” the complaint, investigative materials, and resulting disciplinary documents may be disclosable under the CPRA.

The court also had to determine whether, when a public agency agrees to produce personnel records in response to a CPRA request, the employee is entitled to seek judicial relief to prevent the disclosure--an issue never before decided by a California appellate court. Under the CPRA, a requesting party who is denied the records sought has a judicial remedy that may include the court reviewing the records “in camera” to decide whether they should be disclosed. By contrast, the public agency has no corresponding right to ask a court to decide whether records must be disclosed. (Filarsky v. Superior Court (2002) 28 Cal.4th 419.) Rather, an agency must either produce the records and risk a lawsuit by its employee for invasion of privacy, or withhold the records and risk a CPRA action by the requester.

The court held Marken could file a “reverse-CPRA action” to argue against disclosure of his personnel records. Such reverse actions are permitted under the federal Freedom of Information Act, on which the CPRA was modeled. Allowing such an action, the court held, would not impair the important procedural protections available to the party making the CPRA request. Additionally, no comparable procedure existed for an interested third party to ask a court to preclude an agency from disclosing confidential documents.

While upholding Marken’s right to file the reverse-CPRA action, the court determined the records were disclosable pursuant to Chwe’s request, and must be properly redacted to remove the names and personal information of the complainant and witnesses. Rejecting Marken’s argument that the report and reprimand were not “substantial,” the court explained that “if the complaint has been upheld by the agency involved or discipline imposed, even if only a private reproval, it must be disclosed.” (Citing American Federation of State County and Municipal Employees (AFSCME), Local 1650 v. Regents of University of California (1978) 80 Cal.App.3d 913.)

The court also held that Chwe had a “stake in the outcome” of the case and would have been entitled to intervene in Marken’s lawsuit, but did not do so properly, having attempted to appear ex parte whilehe was not a party to the action. The court thus dismissed Chwe’s appeal from the order denying his leave to intervene.

On appeal, Chwe had also argued the District acted unlawfully by not immediately releasing the records. The court disagreed. While questioning whether the one-month delay to allow Marken to file his petition was authorized under the CPRA, the court held that ultimately, “any additional delay that may result from permitting a reverse-CPRA action is outweighed by the statutory right of an interested party to ensure that public agencies do not disclose records whose confi dentiality is mandated by law.”

Significance to Public Employers

Public agencies are often at a disadvantage when records of their employees, which are generally confidential, are sought under the CPRA. Unlike the requesting party, the agency has no access to “declaratory relief” in court to determine whether the records must be disclosed. This decision affirms that a public agency sometimes must disclose such records, and that the affected employee may file a reverse-CPRA action in an attempt to preclude disclosure. As a result, we may anticipate some increase in the number of employees asking courts to prohibit their employers from releasing personnel-related documents under the CPRA.

Public employers must comply with the strict time limits of the CPRA in responding to records requests. The CPRA requires a public agency to respond to a public request within 10 days, or in certain circumstances, 24 days. Within those timelines, the agency shall “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 therefor.” As the court noted, Section 6253(b) requires a local agency to make requested records “promptly available” to any person upon payment of fees duplication costs. However, nothing in the CPRA establishes specific time periods as to when a public agency must produce disclosable records to a requesting party. Instead, Section 6253(c) requires that when dispatching its determination that a request seeks disclosable records, the agency “shall state the estimated date and time when the records will be made available.” The court in Marken did not determine whether any delay in producing documents is permitted to allow an employee to seek judicial relief. Employees and their counsel must be prepared to act quickly if they intend to file a reverse-CPRA action.

Any CPRA request involving personnel records requires careful scrutiny to determine whether the records are confi dential, whether they pertain to a well founded and substantial complaint against an employee, and how they should be redacted if they are ultimately disclosed. We recommend such requests be promptly reviewed by legal counsel.


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