Case Number: 19STCP04439 Hearing Date: December 17, 2019 Dept: 40

MOVING PARTY: Petitioner California Department of Fair Employment and Housing

OPPOSITION: Respondent City of Los Angeles

Petitioner California Department of Fair Employment (“Department of Fair Employment”) and Housing is the state agency responsible for enforcing the California Fair Employment and Housing Act (“FEHA”). Hans Russo, an employee of City of Los Angeles (“Respondent”), filed an administrative complaint with Petitioner alleging that he was subject to sexual harassment and retaliation.

As part of its investigation into these allegations, in April 2019, Petitioner served Respondent with a “Special Request for Inspection and Copying, Set One” and “Special Interrogatories.” In November 2019, Respondent informed Petitioner that it would not comply.

On October 15, 2019, Department of Fair Employment filed this motion requesting an order requiring Respondent to produce responsive documents to the previously served request for inspection and order and to serve answers to the previously served interrogatories, without objection, within 15 days.

Analysis: Respondent objects to the copying of personnel records of individual employees and the release of test and selection materials. Respondent and four named employees object to providing this information on the grounds of “right to privacy” and “official information.”

The California Constitution recognizes that individuals have a right to privacy. “In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” Williams v. Super. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” Williams, supra, 3 Cal.5th at p. 552. “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

Department of Fair Employment argues that there is a distinction between civil discovery and administrative investigations. Petitioner cites to Arnett v. Dal Cielo (1996) 14 Cal. 4th 4, in which the court interpreted the word discovery in Evidence Code § 1157. In Arnett, the Medical Board of California was investigating a drug addicted doctor. The Board issued a subpoena for the hospital’s peer review committee records relating to the doctor. The hospital objected citing

section 1157, which creates an exemption from discovery for proceedings and records of certain organized medical committees having the responsibility of evaluation and improvement of the quality of care. The court interpreted discovery to mean the formal exchange of evidentiary information between parties in a pending adversarial proceeding, i.e. its common legal definition. The court distinguished an investigative subpoena from a subpoena on the ground that the legislature is “well aware of the distinction between discovery and the exercise of the subpoena power; when it wishes to protect a class of evidence from both procedures, it knows how to do so.” (Id. at p. 21.)

The Court agrees with Department of Fair Employment that there are strong similarities between it and the Medical Board in Arnett. Both agencies investigate complaints from the public and can issue requests to inspect books and issue subpoenas. Therefore, the Court finds that privacy concerns raised by Respondent do not apply to Petitioner’s administrative investigation. Alternatively, the Court also finds that disclosure of the requested records serves Department of Fair Employment’s legitimate and important interest in enforcing anti-discrimination laws. Conversely, Respondent has not provided any “feasible alternatives” or “protective measures” that would safeguard the named employees’ right to privacy.

Respondent argues that Department of Fair Employment is not entitled to individual personnel record materials without prior consent or waiver by the individual employees. This is based on Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, a class action in which the court limited the plaintiff’s discovery of the names and contact information of current and former employees, by requiring an opt out notice. The Court agrees with Department of Fair Employment that Belaire-West is not like the facts of this case because in this action Petitioner seeks information about specific individuals, some of whom are Russo’s alleged harassers.

Respondent argues that the requests are overbroad as to time, stating that Russo’s claims are only from May 2017 to December 2018. Respondent adds that Department of Fair Employment previously investigated allegations by Russo from January 2015 to May 2017 and that information related to the previous investigation should be excluded from the current investigation.

The scope of Department of Fair Employment’s request does not appear to be unduly broad and therefore the Court will not deny the petition on this ground.

Respondent also argues that the California Public Records Act (“CPRA”) excludes “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy” (Gov. Code §6254, subd. (c)). The rule covers more than “personnel” files and reaches any information in government records linked to an identified or readily identifiable individual. But it allows withholding only where the person in question has an objectively reasonable expectation of privacy, which would not apply, for example, to resume-type “information as to the education, training, experience, awards, previous positions and publications” of a public employee. Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788.

The Department of Fair Employment persuasively argues that the CPRA generally favors disclosure and that section 6254 prevents public access to “personnel files”, but the Department of Fair Employment is not a member of the public: it is a government agency.

Finally, Respondent argues that the Department of Fair Employment is not entitled to examine their selection process and confidential testing materials because they are protected by the CPRA and the government information privilege. Respondent cites to Brutsch v. City of Los Angeles (1992) Cal.App.4th 354, in which police officers were not entitled to the interviewer’s rating sheets of a promotional examination because the city had a legitimate interest in protecting the privacy of the interviewers. In Brutsch, the court was concerned about the interviewer’s privacy and stated that even if the interviewer’s names were blacked out, the notes on the rating sheets were still in their handwriting which the plaintiffs might recognize. (Id. at pp. 359-360.) There is no such privacy concern in this action.

The requested documents would not be provided to Russo and would solely be examined by Petitioner’s investigators. Respondent also cites to Detroit Edison Co. v. NLRB (1979) 440 U.S. 301, 312-317, in which the employer refused to provide the employee’s union with individual psychological aptitude testing scores and materials unless the individual employees agreed to sign a waiver. The court was not persuaded by the union which argued that they would safeguard the information because it was not in their own interest to disclose it. The Court finds that Detroit Edison is distinguishable from this case. In Detroit Edison, the court effectively stated that there was no way to punish the union if the tests were leaked. (Id. at p. 314.) The Department of Fair Employment has much more stringent regulations which would prevent disclosure of the respondent’s testing materials.

Conclusion: DFEH’s petition to compel compliance is GRANTED.