Filed 5/26/15 inewsource v. Super. Ct. Ca4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
INEWSOURCE, D067118
Petitioner, (San Diego County Super. Ct. No. 37-2014-00007070-CU-WM-CTL) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
NORTH COUNTY TRANSIT DISTRICT,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Joan M. Lewis, Judge. Petition
granted in part and denied in part; request for judicial notice granted in part and denied in
part.
Sheppard, Mullin, Richter & Hampton and Guylyn R. Cummins for Petitioner.
No appearance for Respondent. McDougal, Love, Eckis, Boehmer & Foley, Steven E. Boehmer and M. Anne
Gregory for Real Party in Interest.
Petitioner inewsource seeks disclosure of documents from real party in interest
North County Transit District (the District) under the California Public Records Act
(PRA). (Gov. Code, § 6250 et seq.)1 The documents at issue reflect the results of a
"Leadership Assessment Program" conducted at the District's expense by the Rady
School of Management at the University of California at San Diego. In response to
inewsource's PRA request, the District declined to provide the documents on the grounds
they were exempt from disclosure. The trial court agreed and denied inewsource's
petition for writ of mandate compelling disclosure.
Inewsource petitions this court for a writ of mandate directing the trial court to
vacate its order, grant the petition, and compel disclosure. Inewsource contends the
exemptions cited by the trial court, for personnel files (§ 6254, subd. (c)) and the PRA's
"catch-all" provision (§ 6255, subd. (a)), are inapplicable. We agree in part, and therefore
grant the petition in part, as we will explain.
FACTUAL AND PROCEDURAL BACKGROUND
Inewsource is a nonprofit organization based in San Diego, California, and
engaged in investigative journalism. Inewsource publishes its content on the Internet and
through its partnership with KPBS, a local public radio and television station. Among
inewsource's subjects have been the management, operations, and finances of the District.
1 Further statutory references are to the Government Code unless otherwise specified. 2 Inewsource has published dozens of articles, Internet posts, and other items about the
District.
Created by the California Legislature in 1975, the District is a public entity that
develops and operates mass transit services in the northern portion of San Diego County.
These services include the COASTER commuter rail, the SPRINTER light rail, the
BREEZE fixed-route bus system, the FLEX on-demand system, and the LIFT paratransit
service. The District is supervised by a nine-member board of directors consisting of
elected officials from eight cities in its service area and from San Diego County.
In December 2013, 13 District senior management staff participated in a
"Leadership Assessment Program" (Program) at the Rady School of Management at the
University of California at San Diego. The participants attended the Program at the
District's expense. The scope of work for the Program described it in part as follows: "A
structured leadership assessment experience offers an opportunity to demonstrate skills
and capabilities in a challenging environment and to receive feedback on that
performance. . . . [¶] . . . [¶] . . . By providing specific, actionable evaluations and
feedback, developmental activities can be targeted to skills that will make the greatest
difference in the success of both the individual and the organization."
The scope of work touts benefits of the Program for both the participating
individuals and their organization. For individuals, the Program provides "a foundation
for development planning," including (1) "[c]omprehensive, integrated feedback" from
the Program, (2) "[a] summary of results and recommendations for ongoing
development," and (3) "[a] comprehensive 360-degree feedback summary of how others
3 perceive the participant's skills and abilities." For the organization, the Program provides
"a solid foundation for individual development and succession planning efforts" through
(1) "[a] report on each participant detailing their strengths and development needs," (2)
"[a]n evaluation of each participant on each of the organization's key competencies," and
(3) "[a] talent management summary that shows where leadership strengths and
development needs are greatest within a team of participants."2
The latter three items appear to comprise the documents at issue in this proceeding
(hereinafter, the Rady documents). The participant reports are tailored to each individual
and provide specific, personalized written feedback and evaluations along each of the
categories (or "competencies") assessed. These categories include general managerial
skill sets and more practical organizational competencies. The participant evaluation
contains a table that provides a single rating in each category for each participant, along
with the participant's name. (The participant evaluation is the first page of the Rady
documents as submitted to this court.) The talent management summary contains a table
that lists only the categories, not the participants, and shows how the organization as a
whole fared in each category. Although the talent management summary is composed of
the ratings of the individual participants, the ratings are reordered within each category
such that an individual participant's ratings across each category cannot be reconstructed
from the summary. No participant names are listed in the talent management summary.
2 The scope of work also notes that the Program achieves "[a] balance between business acumen and leadership characteristics, competencies and attributes." 4 (The talent management summary is the second page of the Rady documents as
submitted to this court.)3
The District's human resources manager, Karen Tucholski, told participants that
the results of the Program would be confidential. Tucholski said the results "were for
professional development purposes only and would be part of each employee's personnel
file accessible only by authorized [District] personnel such as Human Resources or the
employee's supervisor."
A year later, Brad Racino, an investigative reporter for inewsource, received
information that District employees had participated in the Program. He filed a PRA
request for "[a]ny and all studies or reports compiled by the Rady School of Management
concerning [the District] in electronic format." Two days later, the District denied
Racino's request on the grounds the requested documents were exempt as personnel files
under section 6254, subdivision (c).
Inewsource filed a petition for writ of mandate in the trial court seeking an order
compelling disclosure of the Rady documents and other relief. The District opposed. In
addition to the personnel records exemption, the District argued the Rady documents
were exempt from disclosure under the PRA's "catch-all" exemption in section 6255,
subdivision (a).
3 Even if the documents described in the scope of work do not correspond exactly to the Rady documents at issue here, we find the names used in the scope of work useful and will use them to refer to the Rady documents that have been submitted to us as we have described them. 5 After examining the Rady documents in camera, the trial court denied
inewsource's petition. The court found that both exemptions urged by the District
applied: "Having reviewed the records, the Court first finds that the Rady documents are
'personnel, medical, or similar files, . . .' Accordingly, the Court balances the privacy
interests of the parties subject [to] these documents against the public interest in
disclosure. The Court finds the balance weighs in favor of non-disclosure. Here, the
records would not contribute to the public's understanding of government and would not
shed light on what 'the government has been up to.' [¶] The Rady documents are not
documents reflecting how [the District] conducts its business. Rather, the records
represent an assessment of the individual's strengths and weaknesses in various tested
areas and any recommendations relative thereto. Having reviewed these records, the
Court finds them to be akin to performance evaluations and any public interest in the
records would be minimal at best. [¶] . . . [¶] The Court further finds that the public
interest in disclosure of these documents is outweighed by the public interest in
nondisclosure. [(§ 6255, subd. (a).)] Assuming a public interest exists, the Court finds
that . . . disclosure of these documents would have [a] detrimental effect on the
management employees at [the District] by creating unhealthy comparisons and potential
embarrassment between management employees and their subordinate employees."
Inewsource petitioned this court for a writ of mandate directing the superior court
to vacate its order, grant the petition, and compel disclosure of the Rady documents. We
requested and received a sealed copy of the documents at issue, which we have reviewed.
We issued an order to show cause and will now grant the petition in part.
6 DISCUSSION
I
As an initial matter, we must consider inewsource's request for judicial notice,
which includes requests inewsource made to the trial court (but for which the trial court
issued no ruling) and requests to this court in the first instance.4 Evidence Code section
459, governing requests for judicial notice in this court, provides in part as follows: "The
reviewing court shall take judicial notice of: (1) each matter properly noticed by the trial
court; and (2) each matter that the trial court was required to notice under [Evidence
Code] Section 451 or 453. The reviewing court may take judicial notice of any matter
specified in [Evidence Code] Section 452." (Evid. Code, § 459, subd. (a); see Lockley v.
Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)
If a matter is properly subject to judicial notice, "[e]xclusionary rules of evidence do not
apply except for [Evidence Code] Section 352 and the rules of privilege." (Evid. Code,
§ 454, subd. (b)(2).)
Inewsource's first request for judicial notice in the trial court covered four news
articles published by inewsource (and in some cases KPBS as well) concerning alleged
incompetence and malfeasance at the District and one memorandum issued by the
California Department of Industrial Relations discussing regulatory requirements related
to personnel records. The fact that news articles have been published may be judicially
4 Prior to the issuance of our order to show cause in this matter, inewsource submitted an application for judicial notice. Because inewsource's motion for judicial notice supersedes the application, we deny the application as moot. 7 noticed under Evidence Code section 452, subdivisions (g) and (h). (Ragland v. U.S.
Bank National Assn. (2012) 209 Cal.App.4th 182, 193 (Ragland).) However, a court
may not take judicial notice of the truth of the matters stated therein. (Id. at pp. 193-194.)
Similarly, official government records may be judicially noticed under Evidence Code
section 452, subdivision (c), but the truth of the matters stated therein may not.
(Ragland, supra, 209 Cal.App.4th at p. 193 ["Although the audit report is a government
document, we may not judicially notice the truth of its contents."].) We further find that
these matters have at least some relevance to the issues before the court. Upon the proper
request of a party, the trial court was required to judicially notice the existence of the
news articles and the state memorandum. (Evid. Code, § 453.) We are therefore required
to do so as well. (Evid. Code, § 459, subd. (a).)
Inewsource's second request for judicial notice in the trial court covered more than
30 documents. The existence of the news stories and Internet Web pages referenced in
the request will be judicially noticed for the reasons we have already stated.5 (Evid.
Code, §§ 452, subds. (g) & (h); 453, 459, subd. (a); see Ragland, supra, 209 Cal.App.4th
at p. 193.) Similarly, the existence of the District correspondence, District e-mails, the
District's annual report, a third-party audit commissioned by the District, and other
District documents referenced in the request will be judicially noticed. (Evid. Code,
5 We will not take judicial notice of the Wikipedia page entitled "No bid contract" on the grounds the trial court was not required to judicially notice it because it had no relevance to the disposition of inewsource's petition. (People v. McKinzie (2012) 54 Cal.4th 1302, 1326 [" 'Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed.' "].) 8 §§ 452, subds. (c), (g) & (h); 453, 459, subd. (a); see Landstar Global Logistics, Inc. v.
Robinson & Robinson, Inc. (2013) 216 Cal.App.4th 378, 388, fn. 4; Ragland, supra, 209
Cal.App.4th at p. 193.) The referenced portions of the Public Contract Code, sections
100 through 102, are subject to mandatory judicial notice. (Evid. Code, §§ 451, subd.
(a); 459, subd. (a).) Again, we find that these matters have at least some relevance to the
issues before the court. We will not take judicial notice of the existence or contents of
the inewsource correspondence referenced in the request because they are not judicially
noticeable as a fact or proposition in common knowledge or not reasonably subject to
dispute. (See Evid. Code, § 452, subds. (g) & (h).) We also will not take judicial notice
of District documents and correspondence filed in inewsource's exhibit appendix to its
trial court writ petition. Those documents are already part of the record before this court,
and judicial notice is unnecessary. Any objections made in the trial court have not been
adequately urged on appeal and supported by reasoned argument and authority. They are
therefore waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956.)
Inewsource's request for judicial notice in this court covers the District's business
case justification for the Program, other District documents and correspondence, an
Internet Web page published by the California Department of Human Resources, two
California Regional Water Quality Board orders, portions of a Federal Transit
Administration review of the District, and various inewsource news articles and Internet
Web pages. Inewsource contends judicial notice of these documents is warranted under
Evidence Code section 452. Inewsource did not seek judicial notice of these documents
9 in the trial court, claiming without explanation that "page constraints" prevented it from
doing so. To the extent these documents are already part of the record, e.g., in
inewsource's exhibit appendix, judicial notice is unnecessary as we have explained. As to
documents not already part of the record, we decline to take judicial notice of these
documents in these proceedings because inewsource did not request judicial notice in the
trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn.
3; Safeco Ins. Co. of America v. Superior Court (2009) 173 Cal.App.4th 814, 834, fn. 14.)
II
We now turn to the merits of inewsource's petition. "The PRA and the California
Constitution provide the public with a right of access to government information. As [the
Supreme Court] has explained: 'Openness in government is essential to the functioning
of a democracy. "Implicit in the democratic process is the notion that government should
be accountable for its actions. In order to verify accountability, individuals must have
access to government files. Such access permits checks against the arbitrary exercise of
official power and secrecy in the political process." [Citation.]' [Citation.] In adopting
the PRA, the Legislature declared that 'access to information concerning the conduct of
the people's business is a fundamental and necessary right of every person in this state.'
(§ 6250.) 'As the result of an initiative adopted by the voters in 2004, this principle is
now enshrined in the state Constitution . . . .' [Citation.] The California Constitution,
article I, section 3, subdivision (b)(1) provides: 'The people have the right of access to
information concerning the conduct of the people's business, and therefore, the meetings
10 of public bodies and the writings of public officials and agencies shall be open to public
scrutiny.' " (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 164.)
The PRA "was passed for the explicit purpose of 'increasing freedom of
information' by giving the public 'access to information in possession of public agencies'
[citation]. Maximum disclosure of the conduct of governmental operations was to be
promoted by the [PRA]." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651-652.) "In
general . . . all public records are subject to disclosure unless the Legislature has
expressly provided to the contrary." (Los Angeles Unified School Dist. v. Superior Court
(2014) 228 Cal.App.4th 222, 238 (LAUSD).)
"The Legislature has been 'mindful of the right of individuals to privacy.'
(§ 6250.) Set forth in the [PRA] are numerous exceptions to the requirement of public
disclosure, many of which are designed to protect individual privacy. (See § 6254.) In
addition, a catchall exception applies if 'on the facts of the particular case the public
interest served by not disclosing the record clearly outweighs the public interest served
by disclosure of the record.' (§ 6255, subd. (a).) Unless one of the exceptions stated in
the [PRA] applies, the public is entitled to access to 'any writing containing information
relating to the conduct of the public's business prepared, owned, used, or retained by any
state or local agency.' (§ 6252, subd. (e); see § 6253, subd. (a).)" (International
Federation of Professional & Technical Engineers, Local 21, AFL–CIO v. Superior
Court (2007) 42 Cal.4th 319, 329 (International Federation), fn. omitted.)
"In 2004, California's voters passed an initiative measure that added to the state
Constitution a provision directing the courts to broadly construe statutes that grant public
11 access to government information and to narrowly construe statutes that limit such
access. (Cal. Const. art. I, § 3, subd. (b)(2).) That provision, however, does not affect the
construction of any statute 'to the extent . . . it protects [the] right to privacy . . . .' (Cal.
Const. art. I, § 3, subd. (b)(3).)" (Long Beach Police Officers Assn. v. City of Long Beach
(2014) 59 Cal.4th 59, 68.)
"Interpretation of the [PRA] and its application to undisputed facts present
questions of law subject to de novo appellate review. [Citation.] And when it comes to
balancing various interests under the [PRA], while we accept the trial court's express and
implied factual determinations if supported by the record, 'we undertake the weighing
process anew." (LAUSD, supra, 228 Cal.App.4th at p. 237.) "An agency opposing
disclosure bears the burden of proving that an exemption applies." (Id. at p. 239.)
III
The District first asserts that the Rady documents are part of the participants'
personnel files and are therefore exempt under section 6254, subdivision (c).6 That
statute exempts from disclosure "[p]ersonnel, medical, or similar files, the disclosure of
6 The District also makes the following threshold argument: "[The District] has always maintained that the Rady documents are not public records[;] they are private personnel records and exempt from disclosure under Government Code section 6254 subdivision (c)." The District appears to misunderstand the PRA. Personnel records exempt from disclosure are public records; otherwise they would need no exemption. (§§ 6252, subd. (e); 6254.) In any event, the District offers no reasoned argument or authority for the proposition that the Rady documents are not public records. Based on our review, we conclude they are public records within the meaning of the PRA. (§ 6252; see San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774 (San Gabriel Tribune).)
12 which would constitute an unwarranted invasion of personal privacy." (§ 6254, subd.
(c).)
Relying on analogous federal law under the Freedom of Information Act (FOIA),
this court has applied a three-step analysis to evaluate an argument based on this
exemption: "As a threshold matter, the court must determine whether the records sought
constitute a personnel file, a medical file, or other similar file. If so, the court must
determine whether disclosure of the information would 'compromise substantial privacy
interests; if privacy interests in given information are de minimus disclosure would not
amount to a "clearly unwarranted invasion of personal privacy" [citation], in light of
FOIA's broad policy favoring disclosure.' [Citation.] Lastly, the court must determine
whether the potential harm to privacy interests from disclosure outweighs the public
interest in disclosure." (Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 818
(Versaci); see BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 755 (BRV).)7
To qualify as personnel or similar files, documents "need not contain intimate
details or highly personal information. They may simply be government records
containing 'information which applies to a particular individual.' " (LAUSD, supra, 228
Cal.App.4th at p. 239.) Two types of records in the Rady documents, the participant
7 Inewsource contends Versaci is not good law because it relies on analogous cases interpreting FOIA and it cites a case (Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500), the conclusion of which the Supreme Court later disagreed with (see International Federation, supra, 42 Cal.4th at p. 336). We disagree. Cases interpreting FOIA can inform California courts' interpretation of the PRA in many contexts, even if the two statutory schemes differ in certain ways. (See Williams v. Superior Court (1993) 5 Cal.4th 337, 352.) Versaci's citation to Teamsters Local 856 v. Priceless, LLC also does not undermine the analysis or conclusions in Versaci on which we rely. 13 reports and participant evaluations, appear to be personnel or similar files. They contain
information specific to individual participants, and the competency evaluations in those
records reflect information that is traditionally contained in personnel files (e.g.,
performance reviews). (See ibid.; Versaci, supra, 127 Cal.App.4th at p. 819; see also
Milner v. Department of Navy (2011) 562 U.S. 562 [" '[T]he common and congressional
meaning of . . . "personnel file" ' is the file 'showing, for example, where [an employee]
was born, the names of his parents, where he has lived from time to time, his . . . school
records, results of examinations, [and] evaluations of his work performance.' "].) The
talent management summary presents a closer question. The information in that record
reflects individual, albeit anonymous, information and evaluations. For purposes of our
discussion, we will accept the District's contention that the talent management summary,
too, is a personnel or similar file.
Next we evaluate the privacy interests implicated by the Rady documents.
(Versaci, supra, 127 Cal.App.4th at p. 818.) "Public employees have a legally protected
interest in their personnel files." (BRV, supra, 143 Cal.App.4th at p. 756.) The strength
of that interest, however, will vary depending on the information at issue. Again, we find
it useful to distinguish the participant reports and participant evaluation, on one hand,
from the talent management summary, on the other.
The participant reports and participant evaluation reflect individualized
assessments of each participant. In the participant reports, these assessments include
written narratives describing the participant's personality traits, work ethic, and similar
qualities. In the participant evaluation, the assessments are distilled into a rating for each
14 assessed category. Based on this content, we conclude that disclosure of the participant
reports and participant evaluation in the Rady documents "would 'compromise substantial
privacy interests.' " (Versaci, supra, 127 Cal.App.4th at p. 820 [disclosure of an
employee's "personal performance goals"].) "[T]he 'disclosure of negative comments or
information about an employee on these subjects . . . could be quite embarrassing and
painful to the employee. While many of the comments and much of the information are
favorable or neutral, [the relevant exemption] was designed to protect individuals from a
wide range of embarrassing disclosures, not just the disclosure of derogatory information.
Indeed, the disclosure of favorable information could place the employee in a very
embarrassing position with other, possibly jealous, employees.' " (Ibid.)
The talent management summary presents no similar danger of embarrassment or
pain to individual employees. While the talent management summary provides
information about the participants as a whole (e.g., whether most participants performed
well in a particular category), the information cannot be linked to any individual
participant. Nor does the talent management summary disclose whether any individual
participant did well in one category and worse in another category; the ratings within
each category are reordered from best to worst. The privacy interest in such collective
assessments, while perhaps not de minimus, is nonetheless severely attenuated.
Our final step is balancing the privacy interests implicated by the Rady documents
against any public interest in their disclosure. We "must determine whether the potential
harm to privacy interests from disclosure outweighs the public interest in disclosure."
(Versaci, supra, 127 Cal.App.4th at p. 818.) Fundamentally, the strength of the public
15 interest depends on " 'the extent to which disclosure of the requested item of information
will shed light on the public agency's performance of its duty.' " (Id. at p. 820.) "While,
as a threshold matter, the records must pertain to the conduct of the people's business, '
"[t]he weight of that interest is proportionate to the gravity of the governmental tasks
sought to be illuminated and the directness with which the disclosure will serve to
illuminate." ' " (LAUSD, supra, 228 Cal.App.4th at p. 242; see Connell v. Superior Court
(1997) 56 Cal.App.4th 601, 616.)
As an initial matter, we note that the Program—and therefore the Rady
documents—were procured with District funds. The public therefore has an interest in
knowing what was purchased with those funds, whether the Program was worth what the
District spent, and whether the Program provided utility to the District. (See
International Federation, supra, 42 Cal.4th at p. 333 [finding a "strong public interest in
knowing how the government spends its money"].) The public also has an interest in
knowing how the District identifies professional development opportunities and evaluates
its senior staff, which were in part purposes of the Program. The Rady documents would
plainly shed light on the District's activities in these ways.
The Rady documents also shed light on the District's ability to perform its primary
duty: developing and operating mass transit systems in San Diego County. "[P]ublic
access makes it possible for members of the public ' "to expose corruption, incompetence,
inefficiency, prejudice, and favoritism." ' " (International Federation, supra, 42 Cal.4th
at p. 333.) The Program was designed to assess the competence of the District's senior
managers in various categories (including "the organization's key competencies ") and
16 identify development opportunities. The Rady documents reflect the results of that
assessment, including whether the individual participants performed well on the
Program's various measures of managerial competency. While the Program focused on
the competence of individual managers, the District's ability to perform its duty depends
on the abilities of the individuals within the District's organization to act competently.
(See BRV, supra, 143 Cal.App.4th at p. 757 ["Without doubt, the public has a significant
interest in the professional competence and conduct of a school district superintendent
and high school principal."].) The Rady documents are therefore relevant to an important
public interest.
Although the Rady documents are somewhat abstracted from the specific details
of the participants' everyday work, as the District repeatedly points out, the Rady
documents nonetheless provide valuable insight into the strengths and weaknesses of the
participating managers in their senior roles at the District—and the strengths and
weaknesses of the management team as a whole. Indeed, those are two of the main
purposes of the Program as set out in its scope of work.8
8 Contrary to inewsource's contention, the Rady documents do not involve an inquiry into instances of District wrongdoing, well-founded or otherwise. Instead, as we have discussed, they represent the evaluation of the participating managers in various general categories of managerial competency. Although the Rady documents may have some relevance to inewsource's allegations of wrongdoing or malfeasance, because they relate generally to the ability of the participating mangers to perform in their positions, there is no heightened public interest based on that tenuous connection. The standard for disclosure articulated by American Federation of State etc. Employees v. Regents of the University of California (1978) 80 Cal.App.3d 913 is therefore inapplicable. "[That] case provides that where complaints of a public employee's wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from 17 The participant evaluation and talent management summary, by presenting the
ratings of the participant group as a whole, bear most directly on the District's
competence to perform its public duties. (See LAUSD, supra, 228 Cal.App.4th at p. 243
["There can be little doubt that a public interest exists in 'teacher AGT scores' [i.e.,
teaching achievement metrics] as a whole."].) The additional information in the
participant reports, however, is only indirectly relevant to the operations of the District.
Much of the information in the participant reports is tailored to the individual traits and
personalities of the participants. While the public has some interest in knowing and
evaluating the traits and personalities of senior managers at a public agency, based on our
review most of the information in the participant reports would be primarily useful only
to the individual participants. The public's ability to understand more about the District
based on this additional information would be low.
Balancing the public and private interests, we conclude that the participant reports
and participant evaluation fall within the PRA's personnel records exception. (See
§ 6254, subd. (c).) These documents reflect the ratings and assessments of each
participant, identified by name, which engenders a strong privacy interest in their
nondisclosure. They are akin to performance evaluations, which implicate substantial
baseless or trivial, and there is reasonable cause to believe the complaint is well founded, public employee privacy must give way to the public's right to know." (Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1046.) The circumstances here are readily distinguishable. (See LAUSD, supra, 228 Cal.App.4th at p. 253 ["That is a far cry from the instant case, where there is no specific incident to investigate, just the ongoing (albeit important) work of teachers doing their jobs."].) 18 privacy interests.9 As to these documents, the strong interest in protecting the privacy of
the individual participants outweighs the public interest in uncovering potential
incompetence. (See Versaci, supra, 127 Cal.App.4th at p. 822 [holding that a public
employee's "privacy interest in her entire evaluation process including her personal
performance goals outweighs the public's minimal interest in the matter"].)
Inewsource points out that a public official generally has "a significantly reduced
expectation of privacy in matters of his public employment." (BRV, supra, 143
Cal.App.4th at p. 758.) While that principle is correct as a general matter, there are
specific instances in which a public official's privacy interests will outweigh the public
interest in disclosure. (See, e.g., Versaci, supra, 127 Cal.App.4th at p. 822.) "[E]ven
government employees have privacy rights and ' "on certain occasions, the public's right
to disclosure must yield to the privacy rights of governmental agents." ' [Citation.]
'[O]ne does not lose his right to privacy upon accepting public employment . . . .' "
(LAUSD, supra, 228 Cal.App.4th at p. 241, fn. 13.) Contrary to inewsource's claim, even
records related to public business may be withheld under an applicable exemption; that is
the purpose of the exemptions. If a record is purely personal and unrelated to public
9 The Brown Act, for example, "expressly authorizes a public agency to meet in closed session regarding the consideration of 'the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.' (Gov. Code, § 54957, subd. (b)(1).)" (Versaci, supra, 127 Cal.App.4th at p. 821; see International Federation, supra, 42 Cal.4th at pp. 333-334.) "The 'underlying purposes of the "personnel exception" are to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters by a local governmental body.' " (Versaci, supra, 127 Cal.App.4th at p. 821.) 19 business, it is not subject to the PRA at all. (See § 6252, subd. (e); see also San Gabriel
Tribune, supra, 143 Cal.App.3d at p. 774.)10
Inewsource proposes, as an alternative, that the names of the participating
individuals be redacted from the Rady documents to mitigate any privacy concerns. (See
CBS, Inc. v. Block, supra, 42 Cal.3d at p. 653 ["The fact that parts of a requested
document fall within the terms of an exemption does not justify withholding the entire
document."].) We disagree. Given the specificity with which the participant reports and,
to some extent, the participant evaluation discuss the competencies, traits, and
personalities of the participating managers, there is a substantial risk that the participating
managers could be identified and linked to their individual ratings and reports. Redacting
the names of the individual managers would therefore have little effect on the privacy
rights implicated by these documents.
10 Inewsource also relies on an opinion of the Attorney General concerning the disclosure of application and personnel files of nautical pilots. (53 Ops.Cal.Atty.Gen. 136 (1970).) In that opinion the Attorney General noted, as we do here, that portions of a personnel file may be sufficiently confidential to warrant exemption under the PRA: "As the information bears more remotely on the question of qualifications or performance, and as it by its personal nature becomes more likely to be regarded as intrusive or embarrassing by its disclosure, the probability of its confidential nature increases." (53 Ops.Cal.Atty.Gen, supra, at pp. 146-147.) The Attorney General therefore advised that "section 6254[, subdivision ](c) preserves the confidentiality of only a limited portion of the material found in a personnel file. For this reason, it is appropriate to segregate the confidential matters from the remainder of such a file." (53 Ops.Cal.Atty.Gen., supra, at pp. 147-148.) The Attorney General did not advise disclosing the entirety of any personnel file, as inewsource implies. Moreover, any analogy between the personnel files at issue in the Attorney General's opinion and the Rady documents is imperfect because the pilots were not employees of the Board of Pilot Commissioners. (See id. at p. 144.) Their personnel files therefore appear to have contained information that would not be comparable to the Rady documents. 20 As to the talent management summary, however, the absence of personally
identifying information tips the balance in favor of disclosure. As we have explained, the
privacy interest implicated by this record is significantly attenuated. Although it appears
probable the participating employees were told that this record, too, would be kept
confidential, the promise of confidentiality is not determinative in weighing the public
and private interests. (See BRV, supra, 143 Cal.App.4th at pp. 748-749, 759; Versaci,
supra, 127 Cal.App.4th at p. 821; San Gabriel Tribune, supra, 143 Cal.App.3d at p. 774.)
The ratings contained in the talent management summary cannot be matched to any
individual participant. The ratings do provide significant information, however, that
bears on the competency of the District's participating senior managers across various
categories (including "the organization's key competencies"). The public interest
therefore remains strong. (See LAUSD, supra, 228 Cal.App.4th at p. 243; BRV, supra,
143 Cal.App.4th at p. 757.) Because disclosure of the talent management summary
would not "constitute an unwarranted invasion of personal privacy," we conclude it is not
exempt from disclosure under section 6254, subdivision (c).
IV
The District also contends the "catch-all" exemption in section 6255 of the PRA
applies to the Rady documents. Under that exemption, an agency may withhold a public
record from disclosure by showing "that on the facts of the particular case the public
interest served by not disclosing the record clearly outweighs the public interest served
by disclosure of the record." (§ 6255, subd. (a).) "Records 'found to be nonexempt under
section 6254 . . . can still be withheld under section 6255.' " (LAUSD, supra, 228
21 Cal.App.4th at p. 254.) However, because we have concluded that a portion of the Rady
documents, the participant reports and the participant evaluation, are exempt under
section 6254, subdivision (c), we need not consider whether they would additionally be
exempt under section 6255. (See ibid.) Our analysis under the "catch-all" exemption
will therefore be limited to the talent management summary.
"The catch-all exemption 'contemplates a case-by-case balancing process, with the
burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on
the side of confidentiality.' [Citation.] Where the public interest in disclosure of the
records is not outweighed by the public interest in nondisclosure, courts will direct the
government to disclose the requested information. [Citation.] Conversely, when the
public interest in nondisclosure clearly outweighs the public interest in disclosure, refusal
to release records will be upheld." (LAUSD, supra, 228 Cal.App.4th at pp. 239-240.)
"Under section 6255, the court balances the public interest in disclosure against the
public interest in nondisclosure." (LAUSD, supra, 228 Cal.App.4th at p. 240.) We have
already considered the public interest in the disclosure of the talent management
summary in the previous part. We will therefore turn to the public interest in
nondisclosure.
The District asserts that "releasing the Rady documents would be detrimental to
the functioning of [the District] and its ability to carry out its duties to the public."
Relying on LAUSD, the District claims disclosure would negatively affect management
employees at the District by generating "unhealthy comparisons among" the employees,
leading to "discord in the workplace." (See LAUSD, supra, 228 Cal.App.4th at pp. 250-
22 251.) In LAUSD, however, the government had already released information that was at
least as detailed as the talent management summary, including anonymous ratings of each
teacher. (LAUSD, supra, 228 Cal.App.4th at p. 247.) The concerns articulated in
LAUSD related to the disclosure of the identities of the public employees at issue, which
is not at issue in the talent management summary. (See id. at p. 245.)
The District's concerns may have some validity with respect to the participant
reports and the participant evaluations, in which the participants and their corresponding
ratings are identified. As to the talent management summary, however, we find the
District's concerns to be largely unfounded because no individual participants are
identified. While the talent management summary reflects how the 13 participants were
rated in each category, the ratings cannot be linked to any individual participant. In the
absence of any specific evidence to the contrary (and the District provides none), we
believe any "unhealthy comparisons" or "discord in the workplace" generated by the
disclosure of the talent management summary would be minimal. While some
subordinate employees may notice the ratings of their superiors as a group, we believe
the subordinates likely already understand their superiors' strengths and weaknesses in far
more detail than the talent management summary provides. And, while some participants
in the Program may experience embarrassment at the prospect of being included in a
group with a given set of scores, the public interest in avoiding such embarrassment is
also minimal.
"Courts must be alert to contentions by government entities that exaggerate the
interest in nondisclosure, lest they be used as a pretext for keeping information secret for
23 improper reasons, such as to avoid embarrassment over mistakes, incompetence, or
wrongdoing. After all, to some extent any request for disclosure of public records will
place a burden on government. Both the voters and their elected officials have
established the general policy that this burden is well worth bearing in order to keep
democracy vital. If the catchall provision of the [PRA] becomes a loophole used to
improperly keep public records from the people, the important purposes of the [PRA]
would be undermined." (LAUSD, supra, 228 Cal.App.4th at p. 250.)
Balancing the strong public interest in disclosure of the talent management
summary against the minimal public interest in its nondisclosure, we conclude the
District has not shown the public interest in nondisclosure clearly outweighs the public
interest in disclosure. (See § 6255, subd. (a).) " 'Since there is a strong public interest in
disclosure, the balance must tip in favor of access' to the information." (Sacramento
County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440,
472.) The "catch-all" exemption under section 6255 does not apply to the talent
management summary.11
11 Our conclusion that the talent management summary must be disclosed under the PRA reinforces our determination that the participant reports and participant evaluation should not be disclosed. While the information contained in each is not exactly the same, the bulk of the information that would allow the public to assess the competency of the District's senior managers (at least according to the Program) is set forth in the talent management summary. (See LAUSD, supra, 228 Cal.App.4th at p. 242 ["Where a requester has an alternative, less intrusive, means of obtaining the information sought, the public interest in disclosure is minimal."].) 24 DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its
order denying inewsource's petition and to enter a new order granting inewsource's
petition in part as to the talent management summary, which is reflected on the second
page of the Rady documents as submitted to this court. Inewsource's request for attorney
fees is denied without prejudice to inewsource's ability to seek attorney fees, including
for this proceeding, in the superior court. In all other respects, inewsource's petition in
this court is denied. Inewsource's request for judicial notice is granted in
part and denied in part as set forth in this opinion. Inewsource is awarded its costs in this
proceeding.
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
McINTYRE, J.