Privacy Issues in the Workplace

In certain circumstances, the Court may require the release of the report, even if accused is exonerated for the most part of the allegations, because the investigation is of a high ranking official. In BRV v. Superior Court 358 , although the district superintendent was exonerated of all serious allegations except for those relating to outbursts of anger, the court found that the public’s interest in knowing why the superintendent was exonerated and how the district conducted the investigation outweighed any privacy interests that the superintendent had in the report, although some redactions were permitted to protect the privacy interests of witnesses. Similarly in Caldecott v. Superior Court 359 , the court order disclosure of the district’s response to a hostile work environment complaint by the Executive Director of Human Resources against the district’s superintendent. While the district did not impose discipline and the allegations were not sustained, the complaint involved allegations of wrongdoing against a high ranking public official complaint. The court was unable to conclude that the allegations were so unreliable that they could be anything but false and there was a strong public interest in knowing how the district’s board treated serious allegations of misconduct against a high ranking public official. The court in Caldecott also permitted redactions to protect the privacy rights of third party individuals. However, the Court of Appeal found in Petaluma v. Superior Court of Sonoma County 360 that investigation materials were protected by the attorney-client privilege where an attorney investigator conducted the investigation even though the investigator's role was limited to a factual investigation and did not provide legal advice. The case involved a discovery dispute and was not the California Public Records Act. However, it is likely that the same analysis would apply to allow a public agency to rely on the attorney-client privilege and the attorney work product doctrine in refusing to disclose an attorney prepared investigation report. Public agencies must carefully evaluate any requests for investigation and disciplinary documents. With the exception of police officer personnel records which are subject to some additional protection under the law, a public agency may be required to release such documents. The California Supreme Court has limited access to records of police investigations except for certain information about crimes and arrests. The court rejected news media arguments that the state public records law must follow federal (Freedom of Information Act) disclosure standards. Under federal standards, an investigative record must be released unless it would interfere with enforcement or a fair trial, violate privacy, identify a confidential informant or endanger someone’s life. In City of Hemet v. Superior Court , 361 the court held that a police department internal investigation report relating to allegations of police misconduct was protected from disclosure under the Public Records Act as records the disclosure of which was exempted or prohibited by the confidentiality provisions of Penal Code section 832.7. Finally, the Public Records Act mandates that a party who prevails in a lawsuit pursuant to the Act is entitled to attorneys’ fees. 362 Consequently, public agencies should consider seeking consent for disclosure of possibly confidential records prior to refusing such Public Records Act requests.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 110