Privacy Issues in the Community College Workplace

b. Federal Tribunals The Federal Rules of Civil Procedure do not impose the same notice requirements. Upon receipt of a subpoena for records, an employer must serve written objections to the subpoena on the grounds that the records are confidential within 14 days of being served with the subpoena, or prior to the date for compliance if the compliance date is less than 14 days. The objections must specify the grounds for the objections and describe the confidential records sufficiently to enable the subpoenaing party to move to compel their production. 235 Having served objections to the subpoena, the employer is not obligated to produce the records unless and until ordered to do so by the court. In the alternative, the employer may also move to quash the subpoena on the same grounds. 236 c. Public Records Request The California Public Records Act (CPRA) 237 makes a wide variety of government records available to the public. However, there are also a number of records that are not subject to disclosure such as “personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” 238 It is recommended therefore that medical records not be released pursuant to a public records request. Nonetheless, the party submitting the request should be notified within 10 days of the decision not to comply with the request and the reasons therefore. 239 d. Peace Officer Personnel Records Peace officer personnel records demand special attention. Peace officer personnel records, including the medical records of a peace officer, are confidential 240 and may only be disclosed pursuant to a noticed motion (known as a Pitchess motion), and then only after an in camera review is conducted by the court. 241 The only instances when a Pitchess motion is not required for discovery of peace officer personnel records are: 1) when the officer requests to review his or her own records, 2) pursuant to a subpoena in federal court proceedings or 3) in the course of an investigation by a grand jury or the district attorney into peace officer misconduct. 242 On September 30, 2018, Governor Edmund G. Brown, Jr. signed Senate Bill 1421 and Assembly Bill 748 that will allow members of the public to obtain certain peace officer personnel records that were previously available only through the Pitchess procedure by making a request under the CPRA as described above. Also, the CPRA should be interpreted in light of the CMIA which requires, as indicated above, written authorization from the patient before medical records can be released.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 74