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A new case from the California Court of Appeals confirms that third parties named in public records may file “reverse” public records lawsuits to prevent disclosure by California public agencies. The case concerned a Santa Monica high school teacher who had been investigated and disciplined for sexually harassing a student. Two years later, a parent filed a public records request under the California Public Records Act seeking all of the school district’s records related to that investigation and discipline.

The teacher filed suit against the school district seeking to stop disclosure of the records. Ultimately, the Court of Appeals held the teacher’s suit was valid, but that these particular records should be disclosed because the public interest outweighed the teacher’s right to privacy. The disclosure was mandated to a large degree because a reprimand had been issued. California agencies, however, may disclose personnel disciplinary files whenever the complaint is “substantial” and “there is reasonable cause to believe the complaint is well-founded” regardless of the actual disciplinary outcome.

As a result, California public agencies can begin to implement the best practices seen in similar jurisdictions (including Washington State), where disclosure exemptions are permissive rather than mandatory. When “reverse” public records lawsuits are allowed and an agency believes that a record’s release may be sensitive to a third party, there is generally no bar to an agency informing the third party of its intent to release records (so long as the agency is still acting within appropriate response times and other public records act requirements). For California agencies, unlike Washington, this is the only way to seek court review before disclosure because the agencies themselves are barred from filing lawsuits asking for guidance.
 

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Today’s Washington Court of Appeals decision in Levy v. Snohomish County stems from Inmate Percy Levy’s less-than-clear records request to the County Prosecutor’s office:

“While pending trial back in 2002… my attorney provided me with a statement made by my co-defendant Breena Johnson. I want a copy of that statement.”

Perhaps unsurprisingly, the designated public records officer sought clarification from Levy, because the records officer was neither Levy nor his attorney. Today’s decision again points out that agencies managing public records requests are allowed to seek clarification and don't need to be mind readers.

As the records officer tried to clarify and fulfill the request without heedlessly duplicating responses to a previous request that Levy had made, Levy first denied he had made a previous request. Then Levy acknowledged the previous request.

Finally, after 59 days and several rounds of confounding correspondence, Levy was in possession of the two documents he apparently had sought. For its troubles in interpreting Levy’s request and conscientious attempt to not burden an inmate with the cost of paying for records he already had, the County was rewarded with a public records act lawsuit.

Levy’s lawsuit alleged that the County’s request for clarification was unwarranted and that the 59-day “delay” was unreasonable. The Court of Appeals found that the County’s request for clarification was reasonable and that there was no delay. The County did inadvertently omit one document when it finally understood what Levy was requesting, but realized its oversight and sent out the document one day later.

Although the Court does not break new ground, the decision serves as a reminder about the need for diligence and documentation in responding to public records requests. Snohomish County was able to show the patent ridiculousness of Levy’s lawsuit by demonstrating that it promptly responded to every communication from him and was striving to understand his request. This case is another example of inmates using the Washington PRA for other than the act’s intended purpose of fostering public access to documents. Such cases caused the legislature to restrict the rights of inmates under the PRA.

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