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Court of Appeal Holds that Personnel Investigation Report is Subject to Disclosure

Marken v. Santa Monica-Malibu Unified School District

On January 24, 2012, the Court of Appeal ruled that a report of a personnel investigation was subject to public disclosure. In Marken, the Court ruled that, under the California Public Records Act (CPRA), public interest in disclosure of a report of a personnel investigation finding a teacher had violated his employer’s sexual harassment policy outweighed the teacher’s privacy interests.

In 2008, Ari Marken (Marken), a mathematics teacher at Santa Monica High School, was the subject of a sexual harassment complaint. The complaint was received by the mother of a ninth grade student, who submitted a document outlining alleged improper conduct towards her daughter, a student of Marken’s. The District hired an independent attorney investigator to investigate the complaint and issue a report. The report contained a summary of the evidence gathered and made “partial findings” regarding certain conduct that she concluded “more likely than not did occur.” Because no students were interviewed, however, the report stated that the investigation was not considered complete. Based on the report, the District issued a written reprimand, finding Marken had violated the District’s policy on sexual harassment.

Marken returned to the classroom after the reprimand.

Two years later, a parent of a District student requested disclosure of all records concerning the investigation into the complaint of harassment, pursuant to CPRA. The District advised Marken that it intended to release the investigation report and the letter of reprimand.

Marken filed a complaint and petition for writ of mandate against the District, seeking a temporary restraining order, an injunction, and declaratory relief. Marken alleged the investigation report and reprimand were not authorized under CPRA because the sexual harassment compliant was neither substantial or well founded, the records were exempt from disclosure under Cal. Gov. Code s 6254(c) (the personnel records exemption) and disclosure was thus prohibited by law as an invasion of his privacy.

The trial court denied Marken’s request for injunction, and the Court of Appeal affirmed. The Court relied on the balancing test for the section 6254(c) personnel file exemption, as outlined in American Federation of State etc. Employees v. Regents of University of California, 80 Cal.App. 3d 913 (1978), Bakersfield City School District v. Superior Court, 118 Cal.App. 4th 1041 (2004), and BRV, Inc. v. Superior Court, 143 Cal.App.4th 742 (2006). The Court disapproved of Marken’s argument against disclosure because the complaint was not substantial, finding that, although disclosure is mandated if there has been a sustained finding by the agency, the information must still be disclosed if it is reliable enough to allow a court to determine that the complaint is well founded and substantial. The Court found that such was the case here. And, regardless of the fact that Marken was not a high profile public official, the Court found that he occupies a position of trust and responsibility, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy.

The Court of Appeal agreed with the trial court’s analysis and found that, although Marken had a significant privacy interest in the records, invasion of that interest was not unlawful if the “invasion is justified by a competing interest.” The Court found that, here, the countervailing interest was the “strong public policy supporting transparency in government.” (citing International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal.4th 319, 329 (2007).)

LEG Practice Advisor: While the Marken court noted several times that the public’s interest in this particular investigative report was strong, public agencies should be aware that they may be compelled to disclose investigation reports to the subject employee, union, the public, or the press.