Privacy Issues in the Community College Workplace

California Courts have also recognized the right of privacy in third parties who prepare ratings, reports, and records that is contained in Article I, Section 1 of the California Constitution. 291 This Constitutional right of privacy in third parties also extends to public safety officer personnel file inspections. Their inspection rights do not apply to unfavorable comments recorded by interviewers in connection with a promotional examination. 292

Board of Trustees v. Superior Court 293 An employee sought discovery of the entire contents of his own personnel file. The University refused to produce written references and statements made by third parties under a guarantee of confidentiality. The Court of Appeal held that the University should make appropriate deletions and produce all documents which could be produced without divulging the identity of the third parties who had been guaranteed confidentiality. Brutsch v. City of Los Angeles 294 The Court of Appeal refused to permit police officers access to interviewers’ rating sheets which contained the interviewers’ comments recorded during the oral interview portion of a promotional examination. The Court recognized the City’s legitimate interest in protecting the privacy of the interviewers whom had been assured that their comments would be confidential and rejected plaintiff’s suggestion that the City redact the names of the interviewers from the rating sheets to allow disclosure. The Court held that plaintiff’s proposed solution was inadequate for three reasons: (1) since the comments are in the interviewers’ own handwriting, plaintiffs may recognize the writing; (2) the possibility that the wording of some of the comments would in and of itself provide a clue to the drafter’s identity; and lastly, (3) some interviewers made their comments on the examination forms themselves presumably in reliance on the promised confidentiality. 295

Furthermore, the California Supreme Court has held that Government Code section 3303, subdivision (f), of the Public Safety Officers Procedural Bill of Rights Act does not grant a peace officer, subject to an internal affairs investigation, a right to investigative reports and complaints prior to being interrogated. 296

3. C HECKLIST : E MPLOYEE P ERSONNEL F ILE I NSPECTION P ROCEDURE

Employers may want to consider the following checklist in implementing an employee personnel file inspection procedure:

 Require the employee to provide a written request for access to the file.

 Review the file to determine whether any of the statutory exemptions apply (e.g., letters of reference regarding county employee, criminal investigations). If so, remove such documents from the file.  Determine whether any of the documents in the file are from individuals who have been given an assurance of confidentiality. If so, remove these documents from the file.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 94