Privacy Issues in the Workplace

NOTE: Brady 368 requires the prosecution to disclose to the defense any exculpatory evidence, including potential impeaching evidence. This duty extends to others acting on the prosecution’s behalf, including the police. The criminal defendant may then, under Pitchess 369 , compel discovery of evidence in the law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against the criminal charge.

i. Inability to Prevent Newspaper from Publishing or Printing Confidential Peace Officer Personnel Information that May Have Been Illegally Obtained In Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC 370 , a California court of appeal held a police union could not prevent the Los Angeles Times from publishing or printing confidential peace officer personnel information that may have been illegally obtained. The court determined that no admissible evidence had been presented that the Times stole the information and a long line of federal and California cases protected the press under the First Amendment when it may have published or disclosed illegally-obtained content. The court further found that an injunction preventing the disclosing of the information was an unconstitutional prior restraint and that any privacy right processed by the deputies in their employment application information belonged to them and could not be asserted by their union. j. Inadvertent Release of Privileged Documents to an Attorney in Response to PRA Request Does Not Waive the Privilege In Adon v. City of Los Angeles 371 , the California Supreme Court determined that the inadvertent release of attorney-client privileged documents in response to a Public Records Act request did not waive the privilege. As the release was accidental, the agency had not exercised a choice to release confidential information and thus had not waived the privilege. k. Defendants are Entitled to Attorneys’ Fees under PRA Only Where Claims are Indisputably Without Merit or Prosecuted for an Improper Motive In M.D. v. Newport-Mesa Unified School District 372 , the defendant school district sought to recover its attorneys’ fees when the district court dismissed the plaintiff’s claims for violation of the California Public Records Act, among others, and refused to grant the plaintiff leave to amend for filing an amended complaint two days late. The Ninth Circuit found the district court abused its discretion in not giving the plaintiff leave to amend. It also found that the defendant school district was not entitled to attorneys’ fees under the CPRA as the complaint was not “clearly frivolous.” The Ninth Circuit found that the original claim was not “indisputably meritless” as whether the plaintiff were entitled to the withheld portions of the videos under the CPRA was an open question that required further fact-finding. The Ninth Circuit also found no evidence of improper motive as the plaintiffs dismissed their CPRA claim two weeks after admitting to having obtained full access to the videos. As the CPRA claim was neither indisputable without merit nor prosecuted for an improper motive, the Ninth Circuit affirmed the lower court’s denial of fees.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 113