Privacy Issues in the Workplace

 If the custodian of records has any doubt whether a particular document is relevant, he or she should present it to the trial court if an in camera hearing has been ordered.  If the custodian of records determines that any personnel documents are clearly irrelevant to the proceeding, those documents need not be presented for an in camera review, but the custodian should be prepared to state in chambers and for the record what those withheld documents consist of and why they were deemed by the custodian to be irrelevant or otherwise non- responsive to the Pitchess motion.

In determining which documents are relevant for production in an in camera review, custodians of records should be mindful of the Supreme Court’s holding that, “...if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.” On the other hand, in the overwhelming majority of cases, documents regarding marital status, family member identification, employment application information, letters of recommendation, promotion records and health records, need not be produced for an in camera review, unless the same are relevant to the particular case pending before the court. Where any particular Pitchess motion presents a “close call” on the issue of document relevancy, it is recommended that the custodian consult with appropriate legal counsel as an aide in making the relevancy determination. b. Exclusions The confidentiality sections of the Penal Code section 832.7 and Evidence Code sections 1043 and 1045 do not restrict access by the California Attorney General or a grand jury in the course of an investigation of an officer’s or policy agency’s conduct. 413 Penal Code section 832.7 does not create a privacy interest on the part of individual witnesses or officers in tapes and transcripts of witnesses interviewed during police commission’s investigations of employment discrimination charges against a police officer. 414 When a former police officer testifies against a police department in a lawsuit, the police department which employed the officer may allow its lawyer to review the former police officer’s personnel file in order to evaluate its use during cross-examination and as impeachment at trial without complying with the Pitchess procedural requirements and without violating the officer’s right to privacy. 415 In addition, the names, employing departments, and hiring and termination dates of peace officers maintained by the California Commission on Peace Officer Training and standards do not constitute confidential peace officer personnel records under Penal Code sections 832.7 and 832.8. 416 Similarly, “well-established norms of California public policy and American public employment exclude public employee names and salaries from the zone of financial privacy protection.” Thus, the names and salaries of public employees earning $100,000 per year or more, including peace officers, are not protected from disclosure as personnel records under Penal Code sections 832.7 and 832.8. 417

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 120