C.A. 2nd
B231787

The Second Appellate District affirmed an order denying a preliminary injunction and dismissed an appeal from an order denying leave to intervene. The court held, as a matter of first impression, that, after a party’s requesting disclosure of school records under the California Public Records Act was denied, the party was entitled to file a petition for a writ of mandate to compel disclosure.

After receiving a student complaint, the Santa Monica-Malibu Unified School District conducted an investigation into alleged sexual harassment of the student by Ari Marken, a mathematics teacher at Santa Monica High School. The student’s parents spoke with the investigator and provided information regarding the alleged misconduct. They explained, however, that they had decided not to allow their daughter, the complainant, to be interviewed about the matter. The investigator did interview the house principal, the dean of students, several staff members and Marken. Marken admitted that he had engaged in certain of the conduct alleged but denied that he had engaged in other conduct.

The investigator’s report made “partial findings” regarding certain conduct that she concluded “more likely than not did occur.” However, the report stated that because no interviews were conducted of any students, the investigation was not considered complete.

After the investigation, the District issued a written reprimand to Marken for violating the District’s policy prohibiting the sexual harassment of students. Marken, who had been placed on administrative leave during the month-long investigation, returned to his classroom following the reprimand. No criminal charges were ever filed.

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 that he had violated the sexual harassment policy. Marken, upon being informed that the District intended to release the investigation report and letter of reprimand, filed a complaint for injunctive and declaratory relief/petition for writ of mandate against the District. He alleged that disclosure of his personnel records was not authorized under the CPRA because the sexual harassment complaint was neither substantial in nature nor well founded. He further alleged that disclosure would violate his constitutional and statutory rights of privacy, and cause him irreparable harm.

The trial court denied Marken’s request for a preliminary injunction and denied Chwe’s ex parte application to intervene in the action. Marken and Chwe both appealed.

The court of appeal affirmed the denial of a preliminary injunction, holding that Marken had a right to petition for a writ of mandate to challenge the court’s order but determining that the public’s right of access outweighed his privacy rights in this case. The court dismissed Chwe’s appeal as not taken from an appealable order.

The California Constitution, the court explained, guarantees both the individual’s right of privacy (art. I, §1) and the public’s right of access to information concerning the public’s business (art. I, §3(b)(1)), including the writings of public officials and agencies. In the CPRA, the Legislature sought to reconcile these two fundamental, but sometimes conflicting,conditional rights. Thus, public records are generally subject to disclosure under the CPRA unless exempt from disclosure by express provisions of law.

Section 6254(c), the court continued, exempts disclosure of “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Section 6255(a) also permits a public agency to withhold other records if it can demonstrate 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.” These statutory exemptions from mandatory disclosure must be narrowly construed if they limit the people’s right of access. Moreover, the exemptions are permissive, not mandatory. They allow nondisclosure but do not prohibit disclosure.

The court rejected Chwe’s contention that Marken had no right to file an action seeking a judicial ruling precluding the District from disclosing the documents that Chwe requested, referred to by the court as a “reversed-CPRA action.” Although this issue — not addressed by Marken, the District or the trial court — had not previously been resolved in a published appellate decision, and the court felt it was not free from doubt, the court concluded that Chwe was wrong.

The CPRA provides only for an action to compel disclosure, not prohibit disclosure, and the Calfiornia Supreme Court has disapproved a preemptive agency-initiated declaratory relief action to determine whether records should be disclosed. A reversed CPRA lawsuit, however, is fundamentally different from a declaratory judgment action filed by the public entity involved — it seeks judicial review of an agency decision under the CPRA and does not ask the court to undertake the decision making in the first instance. Permitting carefully circumscribed judicial review of an agency decision to release information in a reverse-CPRA action is a far cry, the court opined, from authorizing the court to undertake CPRA decision making in the first instance.

Such an action to review an agency decision to disclose information is authorized under the federal Freedom of Information Act by the Administrative Procedure Act. This statutory authorization, the court reasoned, is not functionally different, at least in the context presented in this case, from the right of a beneficially interested party to seek a writ of mandate pursuant to Code Civ. Proc. §1085 to compel a state or local agency to comply with governing law. Thus mandamus should be available to prevent a public agency from acting in an unlawful manner by releasing information the disclosure of which is prohibited by law. No other remedy exists for an interested party to obtain judicial review of an agency’s decision to improperly release confidential documents.

Second and equally important, the court wrote, although the CPRA provides a specific statutory procedure for the resolution of disputes between the party seeking disclosure and the pubic agency, no comparable procedure exists for an interested third party to obtain a judicial ruling precluding a public agency from improperly disclosing confidential documents. A petition for a writ of mandate is the appropriate procedure to present the issue to the court, the court held.

Permitting a reverse-CPRA action, the court opined, will not impair the important procedural protections available to a party requesting information under the CPRA. The requesting party should be named as a real party in interest and, if not, allowed to intervene in a reverse-CPRA lawsuit if he or she wishes. That party may, however, elect to allow the agency itself to defend its decision. And, any delay that might result from permitting a reverse-CPRA action is outweighed by the statutory right of an interested party to ensure that public agencies do not disclose records whose confidentiality is mandated by law.

The trial court properly denied Marken’s request for a preliminary injunction. Although Marken has a significant privacy interest in the information at issue, the court ruled, he occupied a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. The trial court correctly determined that this interest outweighed Marken’s privacy interest in shielding the information from disclosure.

As to Chwe’s appeal, the court observed that it appeared he should have been joined as a party. Since he was not, granting him leave to intervene pursuant to a properly noticed motion to intervene might have been proper. Nevertheless, the court was compelled to dismiss Chwe’s appeal from the denial of his ex parte application to intervene and leave the trial court to address in the first instance his right to participate in the lawsuit. It appeared that the trial court had denied the ex parte request solely as untimely because it believed that Chwe had not exercised due diligence in moving to intervene earlier, not on the merits of Chwe’s right to intervene in the action. An order denying leave to intervene is appealable only when it finally determines the right of the moving party to proceed in the action.