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Marken v. Santa Monica-Malibu Unified School District

(Cal. Court of Appeal, 2nd Appellate Dist., Case No. B231787, ___ Cal.App.4th ___, 2012 WL 182000, Jan. 24, 2012.)


In October 2008, the Santa Monica-Malibu Unified School District (District) investigated a sexual harassment complaint by a student against Ari Marken, a mathematics teacher at Santa Monica High School. Although the student herself was not interviewed, the investigation concluded that the alleged sexual harassment “more likely than not” occurred based on corroborating evidence from other interviews. The District issued a written reprimand to Marken for violating the District’s policy against sexual harassment and returned Marken to his teaching position.

Two years later, Michael Chwe, a District parent, requested disclosure under the California Public Records Act (CPRA) (Gov. Code § 6250 et seq.) of records concerning the District’s investigation of Marken and its findings he had violated the sexual harassment policy. The District requested additional time to respond and in the meantime advised Marken that it intended to release the investigation report and letter of reprimand.

Marken filed suit to stop the disclosure, alleging that disclosure was not authorized under CPRA and would violate his constitutional and statutory rights of privacy. Ultimately, both the trial court and the appellate court found that disclosure was warranted – but the court broke new ground in allowing Marken to file suit in the first place.


An employee may file suit to protect his or her privacy interests

Typically, when a public agency receives a CPRA request, it determines whether the requested records are subject to disclosure, and in fact the agency cannot ask a court to make this determination on its behalf. (Filarsky v. Superior Court (2002) 28 Cal.4th 419.) If the public agency determines that the records are not subject to disclosure, it is the person seeking disclosure who normally brings suit. Marken is the first time a court has ruled on whether a third party who arguably could be harmed by the disclosure of records may initiate a “reverse-CPRA” suit to prevent disclosure. Answering in the affirmative, the court of appeal held that Marken could bring suit to block disclosure of his private personnel records, reasoning that Marken would otherwise have no recourse to prevent the District from complying with Chwe’s request.

The public interest in complaints against public employees

The court went on, however, to hold that Marken’s records should be disclosed in this case. Although Marken argued that the conduct at issue was not well-founded or substantial in nature, the court rejected this characterization and found that under existing case law, disclosure was justified.


Personnel records are generally exempt from disclosure under the CPRA if disclosure would constitute an unwarranted invasion of privacy. Because of the fear of violating an employee’s right to privacy, most public agencies will refuse to disclose personnel records in response to a CPRA request. In those rare situations where a public agency believes that disclosure of personnel records is required under the CPRA, Marken potentially provides the public agency some protection against an invasion of privacy action by allowing the affected employee to stop any disclosure by filing a “reverse-CPRA” action.

Therefore, even though notice to the affected employee may not be legally required in all situations, public agencies should nevertheless provide notice to an affected employee of any potential disclosure in response to a CPRA request so that the employee has the opportunity to take legal action. Given the short timelines within which a public agency must respond to a CPRA request, the employer should notify an affected employee immediately upon the determination that the request seeks employee records, and perhaps seek an extension from the requesting party if necessary to provide sufficient notice to the affected employee. Employers should bear in mind, however, that the purpose of the notice is only to permit an employee to seek judicial relief, as the CPRA expressly prohibits a responding agency from allowing a third party to control the disclosure of records.

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Emily Prescott, Senior Labor Counsel