ROCCO VERSACI, Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
PALOMAR COMMUNITY COLLEGE DISTRICT, Real Party
in Interest.
No. D044899
In the Court of Appeal of the State of California
Fourth Appellate District, Division One
03-21-2005
(Super. Ct. No. GIN033776)
Proceedings in mandate after the superior court denied request for order directing
disclosure of documents. Lisa Guy-Schall, Judge. Petition denied.
COUNSEL
Charles Wolfinger for Petitioner.
No appearance for Respondent.
Currier & Hudson, C. Anne Hudson, Andrea Naested and Ian Garriques
for Real Party in Interest.
Filed March 21, 2005
Rocco Versaci petitions this court for a writ of mandate to compel the San
Diego County Superior Court to grant his request for an order requiring the
Palomar Community College District (the District) to disclose under the
California Public Records Act (the Act) (Gov. Code, § 6250 et
seq.[FOOTNOTE 1] ) the personal performance goals of its former
Superintendent, Sherrill Amador, Ed.D., for the 2002-2003 academic year.
Versaci contends the trial court erred by finding the goals are not incorporated
into the employment contract, which would mandate their disclosure as a
matter of law under section 6254.8, and by finding the goals are exempt from
disclosure under section 6254, subdivision (c), which applies to personnel
files. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2001 the District hired Dr. Amador as its Superintendent and President,
under a four-year contract beginning the following July, at a starting salary of
$162,000. Paragraph No. 4 of the contract provided: "[Dr. Amador] will receive
an annual written evaluation by the Governing Board [the Board] no later than
May 1 of each year. This evaluation will be based on overall performance and
mutually agreed upon goals and objectives established each year prior to July
1 and will also include a mid-term progress meeting. All evaluations will be held
in a closed session." The contract also entitled Dr. Amador to a 5 percent raise
and a one-year contract extension annually subject to a positive evaluation by
the Board.
In a June 2002 closed session Dr. Amador and the Board mutually established
her personal performance goals for the 2002-2003 academic year. The District
included the goals in her personnel file and maintained their confidentiality.
Between January and May 2003 the Board held closed sessions to evaluate
Dr. Amador's performance. At a May 13 open session the Board reported that
Dr. Amador's overall evaluation was satisfactory, and in light of budgetary
constraints she agreed to forego one-half of the raise to which she was
entitled. The Board's minutes also stated: "The Board cannot ignore the
current situation that needs to be addressed by [Dr. Amador], with the support
of the . . . Board. [ ] Accordingly, the Board directs [Dr. Amador] to focus on
building relationships and improving morale, with progress to be monitored on
an ongoing basis."
At a May 27, 2003 open session the Board voted three to two to extend Dr.
Amador's contract through June 2007 and to increase her compensation by
2.5 percent. The dissenting trustees unsuccessfully sought to defer the vote
pending further evaluation of her performance in closed session.
In June 2003 Versaci asked the District, under the Act, for "a copy of the
eleven annual job goals" of Dr. Amador for the 2002-2003 academic
year.[FOOTNOTE 2] The District denied the request based on provisions of
the Act and Dr. Amador's right of privacy under article I, section 1 of the
California Constitution. It also denied Versaci's subsequent request.
In November 2003 Versaci petitioned the superior court for a writ of mandate
to compel disclosure of the information under the Act. Versaci argued section
6254.8
mandates disclosure of Dr. Amador's performance goals because they were
terms of her employment contract, and alternatively, there is no exemption
under the Act allowing the District to withhold the information. Versaci asked
the court to conduct an in camera review of the "records of the eleven annual
job goals."
In a tentative ruling, the court denied the petition on the grounds the
information was not part of the employment contract, and it is exempt from
disclosure as a personnel record under section 6254, subdivision (c), and
disclosure would invade Dr. Amador's constitutional right of privacy. After oral
argument, the court confirmed its tentative ruling and entered a final order
denying the petition. The court did not address Versaci's request for an in
camera review.
On November 13, 2003, Dr. Amador announced her retirement from the
District, effective July 1, 2004.
DISCUSSION
I
Standard of Review
"' Pursuant to section 6259, subdivision (c), an order of the trial court under
the [Act], which either directs disclosure of records by a public official or
supports the official's refusal to disclose records, is immediately reviewable by
petition to the appellate court for issuance of an extraordinary writ. . . . The
standard for review of the order is "an independent review of the trial court's
ruling; factual findings made by the trial court will be upheld if based on
substantial evidence." ' [Citation.] In contrast, the interpretation of the [Act] and
its application to undisputed facts present questions of law subject to de novo
appellate review." (CBS Broadcasting, Inc. v. Superior Court (2001) 91
Cal.App.4th 892, 905-906.)
II
The Governing Statute
California's Constitution contains an explicit right of privacy that operates
against private and governmental entities. (Art. I, § 1; Gilbert v. City of San
Jose (2003) 114 Cal.App.4th 606, 613.) "Constitutional privacy interests are
not absolute, however. They must be balanced against other important
interests." (Gilbert v. City of San Jose, at p. 613.)
The Act provides for the inspection of public records maintained by state and
local agencies. (§ 6253, subd. (a).) "The Legislature enacted the [Act] in 1968
to give the public access to information in possession of public agencies in
furtherance of the notion that government should be accountable for its
actions and, . . . to verify accountability, individuals must have access to
government files. [Citation.] But ' Recognition of the importance of preserving
individual privacy is also evident in [the Act]. The [Act] begins with the phrase:
"In enacting this chapter, the Legislature [is] mindful of the right of individuals
to privacy . . . ." [Citation.]' [Citation.] ' Disclosure of public records thus
involves two fundamental yet competing interests: (1) prevention of secrecy in
government; and (2) protection of individual privacy.' "(Gilbert v. City of San
Jose, supra, 114 Cal.App.4th at p. 610.)
The Act defines "public record" as "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).) "The definition is broad and ' "'
intended to cover every conceivable kind of record that is involved in the
governmental process[.]' "' "(Coronado Police Officers Assn. v. Carroll (2003)
106 Cal.App.4th 1001, 1006.)
"[A]ll public records are subject to disclosure unless the Legislature has
expressly provided to the contrary." (Williams v. Superior Court (1993) 5
Cal.4th 337, 346.) Under section 6254 an agency may invoke an exemption for
several types of public records from disclosure, including "[p]ersonnel,
medical, or similar files, the disclosure of which would constitute an
unwarranted invasion of personal privacy." (§ 6254, subd. (c).) Under section
6255, the so-called "catchall exception" (Bakersfield City School Dist. v.
Superior Court (2004) 118 Cal.App.4th 1041, 1045), an agency may withhold
public records even if no express exemption is applicable, 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." (§ 6255, subd. (a).)
Sections 6254, subdivision (c) and 6255, however, are inapplicable in the
context of a public employment contract. Section 6254.8 provides: "Every
employment contract between a state or local agency and any public official or
public employee is a public record which is not subject to the provisions of
Sections 6254 and 6255."
III
The Court Correctly Found Dr. Amador's Personal Performance Goals Are Not
Part of the Employment Contract Within the Meaning of Section 6254.8
Versaci contends the court erred by finding Dr. Amador's performance goals
are not part of the employment contract subject to disclosure as a matter of
law under section 6254.8. His theory is that because paragraph No. 4 of the
employment contract refers to goal setting in conjunction with Dr. Amador's
yearly performance evaluations, the written goals are "key terms" of the
contract that must be disclosed.
The Act does not define "employment contract," and it appears there are only
two published opinions discussing Government Code section 6254.8, neither
of which concerns the issue here. (See Braun v. City of Taft (1984) 154
Cal.App.3d 332; Teamsters Local 856 v. Priceless, LLC (2003) 112
Cal.App.4th 1500.) Versaci relies on Civil Code section 1642, which applies to
contracts generally, and provides that "[s]everal contracts relating to the same
matters, between the same parties, and made as parts of substantially one
transaction, are to be taken together."
"It is a familiar rule . . . that where several papers covering the same subject
matter are executed by . . . the same parties . . . , all are to be considered
together, and with the same effect as if all had been incorporated in one
document." (McAuliff v. McFadden (1919) 42 Cal.App. 505, 511, citing Civ.
Code, § 1642.) Civil Code section 1642 "is most frequently applied to writings
executed contemporaneously, but it is likewise applicable to agreements
executed by the parties at different times if the later document is in fact a part
of the same transaction." (Body-Steffner Co. v. Flothill Products (1944) 63
Cal.App.2d 555, 560.) "The contract need not recite that it ' incorporates'
another document," but "[f]or the terms of another document to be
incorporated into the document executed by the parties the reference must be
clear and unequivocal." (Shaw v. Regents of University of California (1997) 58
Cal.App.4th 44, 54.)
Whether a document is incorporated into the contract depends on the parties'
intent as it existed at the time of contracting. The parties' intent must, in the
first instance, be ascertained objectively from the contract language. (Shaw v.
Regents of University of California, supra, 58 Cal.App.4th at p. 54.) However,
"[t]he use of extrinsic evidence to show [whether] several written instruments
were intended to constitute a single contract does not involve a violation of the
parol evidence rule." (Meier v. Paul X. Smith Corp. (1962) 205 Cal.App.2d 207,
219.) The applicability of Civil Code section 1642 is a question of fact for the
trial court, and the appellate court will affirm the court's resolution if it is
supported by substantial evidence. (Brookwood v. Bank of America (1996) 45
Cal.App.4th 1667, 1675; Kwikset Locks, Inc. v. Stewart Commissaries (1964)
225 Cal.App.2d 146, 148-149.)
Versaci contends the "annual goals for 2002-2003 were mutually enforceable
terms of [Dr. Amador' s] employment contract when she and the Board agreed
on them in June 2002," because "[i]f the [Board] found her performance
satisfactory but refused to grant her a pay raise and contract extension, she
clearly has a breach of contract claim based on [its] promise to pay for her
performance of the goals." That analysis is faulty, however, because Dr.
Amador's evaluations were based on her "overall performance" in addition to
the agreed goals. Performance of the goals, standing alone, did not
automatically entitle Dr. Amador to increased contract benefits.
Additionally, Versaci submits section 6254.8 is applicable because Dr.
Amador's personal goals constitute compensation terms typically included in
an employment contract, and she cannot shield them from public scrutiny by
placing them in her personnel file. In support, he cites an Attorney General
opinion (68 Ops.Cal.Atty.Gen. 73 (1985)), in which a city manager determined
the amounts of executive managers' bonuses based on his private evaluation
of their performance. The city divulged the number of executives in the
program, the salary range for each executive, the total cost of the awards
program and the average percentage amount for all the awards, but it withheld
the individual amounts of the bonuses and reasons for awarding them.
The city justified its nondisclosure on grounds the executives who received
lesser awards may be embarrassed and disclosure may jeopardize the
benefits of candid disclosure in the confidential evaluation process. (68
Ops.Cal.Atty.Gen., supra, at p. 73.) The Attorney General, without any
analysis of section 6254.8, concluded that "[e]ach bonus constitutes ' wages'
and forms part of the employment contract," and "any record specifying the
amount of the bonus or the exceptional services for which the bonus is paid
manifests provisions of the executive's employment contract within the scope
of section 6254.8." (68 Ops.Cal.Atty.Gen., supra, at p. 75.)
Here, in contrast, there was no secrecy regarding Dr. Amador's compensation.
Rather, the employment contract set forth the amount of her salary and the
method for calculating any future salary increases, and the Board announced
in open session the result of its evaluations...whether it found her performance
satisfactory or granted a pay raise or contract extension. Versaci does not
contend the Act mandates disclosure of the evaluations conducted in closed
session.
Versaci's reliance on another Attorney General opinion (63 Ops.Cal.Atty.Gen.
215 (1980)) is likewise misplaced. In that opinion, the issue was whether a
provision of the Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et
seq.) required a hospital board to report at its next public meeting action taken
in executive session to set the compensation of an administrator. The Attorney
General answered the question in the negative, but went on to say, "that
compensation, as an integral part of the hospital administrator's employment
contract, would still be a matter of public record under section 6254.8." (63
Ops.Cal.Atty.Gen., supra, at p. 216.) Again, Dr. Amador's yearly compensation
was disclosed.
Braun v. City of Taft, supra, 154 Cal.App.3d 332, is also unavailing. In Braun,
a city councilman (Braun) was investigating purported irregularities in the city's
appointment of a firefighter (Polston) to transit administrator. After the city
manager refused to confirm or deny the appointment, Braun reviewed
Polston's personnel file and released to the press copies of two letters
concerning the appointment and its rescission and the "face sheet" of
Polston's salary card, which was modified by whiting out "transit administrator"
and writing "firefighter" over it. (Id. at p. 339.) The face sheet also revealed
information not germane to Braun's investigation, such as Polston's telephone
number, address, Social Security and credit union numbers and birth date.
Polston filed a grievance against Braun for invasion of privacy, which the city
council refused to consider in a hearing. The council, however, enacted a
resolution censuring Braun for disclosing the letters and salary card. Braun
then petitioned the superior court for a writ of mandate commanding the city to
set aside its censure. The court ruled the records were not within the
personnel file exemption and were subject to disclosure under the Act. (Braun
v. City of Taft, supra, 154 Cal.App.3d at p. 340.)
The appellate court upheld the ruling. It held the letters were subject to
disclosure under section 6254.8 as they "manifested [Polston' s] employment
contract." (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 344.) The court
concluded that "[b]ecause the letters regarded business transactions and
contained no personal information, the [lower] court properly ordered
disclosure of the letters." (Ibid.) The court rejected the city's argument the
personnel exemption applied because the letters were part of the personnel
file and their disclosure would embarrass him. (Id. at pp. 338-339, 341-342,
344.)
The court expressed concern about personal information on the face sheet of
Polston's salary card, but stated it was "reluctant to reverse on [that] limited
ground." (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 345.) In concluding
disclosure did not violate the Act's personnel records exception (§ 6254, subd.
(c)), the court explained: "The data listed on the card was not in any way
embarrassing. One's telephone number and address, although personal, are
seldom secret. There is nothing in the record to show that such information
was not available through a city directory or telephone book." (Braun v. City of
Taft, supra, 154 Cal.App.3d at p. 345.) The court added that "[f]ew persons
would find interest in [the employee' s] Social Security and credit union
numbers, or birth date." (Ibid.)
Braun does not concern the issue here, whether the employment contract's
reference to Dr. Amador's goals constituted an incorporation by reference.
Versaci has submitted no authority for the proposition an employee's personal
performance goals are ordinarily included in a public employment contract.
Further, as noted in Teamsters Local 856 v. Priceless, LLC, supra, 112
Cal.App.4th 1500, 1512, "Braun was decided before the spread of identify
theft, and the current widespread and serious concern for the privacy of an
individual's financial data. Identity thieves today would have a great deal of
interest in an individual's Social Security number and other identifying financial
data."
We conclude Dr. Amador's personal performance goals are not part of the
contract, and thus section 6254.8 is inapplicable. The mere reference in
paragraph No. 4 of the employment contract to future goal setting in
conjunction with Dr. Amador's evaluation process does not clearly and
unequivocally evidence the parties' intent to incorporate the yet to be
determined goals into the contract. Versaci's position that essentially any topic
a contract mentions is incorporated therein is unsupported by any authority
and would lead to absurd results. Indeed, paragraph No. 4 discusses goals
and evaluations, the latter of which Versaci concedes are exempt from
disclosure under the Act. He presents no persuasive theory for treating goals
and evaluations differently insofar as the incorporation question is concerned.
Moreover, the parties' intent is shown by paragraph No. 14 of the contract,
which states it "may be amended by mutual agreement of the parties,
memorialized in writing, and executed by Dr. Amador and the . . . Board." The
District produced evidence the parties never amended the contract to include
Dr. Amador's personal performance goals. Further, Dr. Amador submitted a
declaration that stated she specifically did not intend to expose her personal
performance goals to public scrutiny, and thus we may infer she did not intend
that they be incorporated into the contract and subject to disclosure as a
matter of law. Versaci produced no extrinsic evidence suggesting the parties
did intend to include them as contract terms.
IV
The Court Correctly Found Dr. Amador's Personal Performance Goals Are
Exempt From Disclosure Under Section 6254, Subdivision (c)
Versaci also contends the court erred by finding Dr. Amador's performance
goals are exempt from disclosure under section 6254, subdivision (c). We are
unpersuaded.
The Act was modeled after the federal Freedom of Information Act (FOIA) (5
U.S.C. § 552 et seq.), and thus the "' legislative history and judicial
construction of the FOIA . . . ' serve to illuminate the interpretation of its
California counterpart.' "(Times Mirror Co. v. Superior Court (1991) 53 Cal.3d
1325, 1338.)
"[B]oth the FOIA and the Act expressly recognize that the public's right to
disclosure of public records is not absolute." (City of San Jose v. Superior
Court (1999) 74 Cal.App.4th 1008, 1017.) "' [O]ne does not lose his [or her]
right to privacy upon accepting public employment . . . .' "(New York Times Co.
v. Superior Court (1997) 52 Cal.App.4th 97, 100.) Accordingly, subdivision (c)
of section 6254 gives a public agency discretion to withhold "[p]ersonnel,
medical, or similar files, the disclosure of which would constitute an
unwarranted invasion of personal privacy." The FOIA's Exemption 6
(Exemption 6) is substantively identical. (5 U.S.C. § 522(b)(6).)
Courts apply a three-step analysis in determining whether Exemption 6
applies. 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
minimis disclosure would not amount to a ' clearly unwarranted invasion of
personal privacy,' [citation], in light of FOIA's broad policy favoring disclosure."
(Ripskis v. Dept. of Housing and Urban Development (D.C. Cir. 1984) 746 F.2d
1, 10 (Ripskis).) Lastly, the court must determine whether the potential harm to
privacy interests from disclosure outweighs the public interest in disclosure.
(Ibid.; see also New York Times Co. v. Superior Court, supra, 52 Cal.App.4th
at p. 104 ["Section 6254, subdivision (c), allows for a weighing of interests by
the trial court" ].) "' Congress sought to construct an exemption that would
require a balancing of the individual's right of privacy against the preservation
of the basic purpose of the [FOIA].' [Citations.] The burden is on the agency to
persuade the court that the exemption is appropriate." (Ripskis, supra, 746
F.2d at p. 10.) Further, exceptions to the general rule of disclosure are
construed narrowly. (New York Times, supra, at p. 104.)[FOOTNOTE 3]
The "' primary concern of Congress in drafting Exemption 6 was to provide for
the confidentiality of personal matters.' "(United States Dept. of State v.
Washington Post Co. (1982) 456 U.S. 595, 599-600 (Washington Post).) To
qualify for protection under the exemption, however, the documents sought
need not contain "intimate details" or "highly personal" information. Rather, the
threshold requirement is minimal and "nonintimate information about a
particular individual which happens to be contained in a personnel or medical
file can be withheld if its release would constitute a clearly unwarranted
invasion of personal privacy." (Id. at p. 601.) In Washington Post, the court
held Congress did not intend "to limit Exemption 6 to a narrow class of files
containing only a discrete kind of personal information," and rather, the "'
exemption [was] intended to cover detailed Government records on an
individual which can be identified as applying to that individual.' "(Id. at p. 602.)
It is undisputed that employee performance evaluations fall within the ambit of
Exemption 6. (Ripskis, supra, 746 F.2d at p. 10; Celmins v. U.S. Dept. of
Treasury (D.D.C. 1977) 457 F.Supp. 13, 15.) "In discussing the general
attributes of a personnel file, the United States Supreme Court has stated that
an individual's personnel file generally contains ' "vast amounts of personal
data," ' including ' . . . results of examinations [and] evaluations of his [or her]
work performance.' The court noted that access to personnel files is '
drastically limited . . . only to supervisory personnel directly involved with the
individual . . . .' "(Teamsters Local 856 v. Priceless, LLC, supra, 112
Cal.App.4th at p. 1515, citing Department of the Air Force v. Rose (1976) 425
U.S. 352, 369, 377.)
Versaci concedes Dr. Amador's evaluations are not subject to disclosure, but
he asserts her personal performance goals, on which her evaluations were in
part based, must be disclosed because the District did not dispute the goals
related to her official duties. In Metropolitan Life Ins. Co. v. Usery (D.D.C.
1976) 426 F.Supp. 150, 168, however, the court held "personal preferences
and goals," as well as evaluations, are "similar" files within the meaning of
Exemption 6, even when they do not contain derogatory information, "in that
they reflect highly personal details about . . . employees." We agree, and
conclude Dr. Amador's personal performance goals constitute a personnel file
or other "similar" file within the meaning of section 6254, subdivision (c).
Further, we conclude disclosure of Dr. Amador's personal performance goals
would "compromise substantial privacy interests." (Ripskis, supra, 746 F.2d at
p. 10.) In Metropolitan Life Ins. Co. v. Usery, supra, 426 F.Supp. at page 168,
the court explained that the "disclosure of negative comments or information
about an employee on these subjects [including personal preferences and
goals] could be quite embarrassing and painful to the employee. While many
of the comments and much of the information are favorable or neutral,
[Exemption 6] 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."
[FOOTNOTE 4] (Fn. omitted.)
Turning to the final prong of our analysis, weighing the competing interests, we
must determine "the extent to which disclosure of the requested item of
information will shed light on the public agency's performance of its duty."
(Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th at p. 1519.)
Versaci contends that disclosing Dr. Amador's personal performance goals
"allows public review and comment on relevant aspects of [her] performance
over the year." As the District points out, however, the public interest in Dr.
Amador's performance is moot in light of her retirement effective July 1,
2004.[FOOTNOTE 5]
Versaci also contends disclosure of Dr. Amador's personal performance goals
would allow the public to evaluate the trustees' performance in giving her
satisfactory evaluations, raises and contract extensions, and her retirement
does not render that issue moot. Versaci asks, "How can the public intelligently
decide whether to support or oppose the trustees at the next election without
knowing what goals they were using?" The public, of course, has a legitimate
interest in how the trustees conduct the District's business and manage public
revenues. We may consider, however, whether the public interest can be
substantially advanced by means other than the requested disclosure.
(Ripskis, supra, 746 F.2d at p. 10.)
Under the employment contract, Dr. Amador's evaluations were based on her
"overall performance" in addition to her personal performance goals. The
District produced evidence that in open session the Board adopted numerous
documents under which the District is run, including a "Strategic Plan," "Annual
Implementation Plans" and "Board Goals," and the documents are available to
the public. Further, as the District's Superintendent, Dr. Amador was "fully
accountable to the Board and to the public for achieving the goals" set forth in
those documents. Without resorting to her personnel file, a substantial amount
of information is available to assist the public in assessing the trustees'
conduct vis-.... -vis Dr. Amador.
Additionally, we conclude Dr. Amador has a reasonable expectation of privacy
in her personal performance goals. (See Teamsters Local 856 v. Priceless,
LLC, supra, 112 Cal.App.4th at p. 1516 [reasonable expectation of privacy in
salary details contained in employees' personnel files precluded disclosure
under the Act].) She submitted a declaration that stated, "[o]ne of my priorities
in . . . negotiation [of my contract] was to assure that my performance
evaluation, to include my personal performance goals and objectives . . . ,
[was] kept confidential and discussed only in closed session meetings of the
Boards. . . . I have never and would never agree to have any component of my
performance evaluation released to the public."
It is true that "a mere promise of secrecy cannot always shield a public record
from disclosure." (Teamsters Local 856 v. Priceless, LLC, supra, 112
Cal.App.4th at pp. 1513-1514.) The District, however, produced evidence that
an employee's personal performance goals are customarily kept confidential.
Dr. Amador's declaration stated she had been in the education field since
1978 and no school she ever worked for "released to the public any part of an
employee's personal performance evaluation." (Italics added.) Dr. Jack
Miyamoto, the District's Assistant Superintendent/Vice President of Human
Resource Services and Affirmative Action, submitted a declaration that stated
"personal goals and objectives sometimes include areas of the specific
employee's work performance which require improvement," and, "I have never
in my career released to the general public any component of any employee's
performance evaluation without consent." "' A "reasonable" expectation of
privacy is an objective entitlement founded on broadly based and widely
accepted community norms.' "(Id. at pp. 1515-1516.)
Moreover, the Brown Act 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).) 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." (San Diego Union v. City Council (1983) 146 Cal.App.3d
947, 955.) Under the employment contract, Dr. Amador's personal
performance goals were an integral part of the confidential evaluation process.
"There is an inherent tension between the public's right to know and the public
interest in protecting public servants, as well as protecting private citizens,
from unwarranted invasion of privacy. [Citation.] On certain occasions, the
public's right to disclosure must yield to the privacy rights of governmental
agents." (New York Times Co. v. Superior Court, supra, 52 Cal.App.4th at p.
100.) We conclude this is such a case, as Dr. Amador's privacy interest in her
entire evaluation process...including her personal performance
goals...outweighs the public's minimal interest in the matter.[FOOTNOTE 6]
DISPOSITION
The petition is denied. Costs in this proceeding are awarded to the District.
McCONNELL, P. J.
WE CONCUR: HALLER, J., McDONALD, J.
March 22, 2005 CALIFORNIA
::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::
FN1. Statutory references are to the Government Code unless otherwise
specified.
FN2. Versaci is the president of the District's faculty union, and the
District "has been involved in ongoing and extensive negotiations"
with him "over the District's first collective bargaining agreement with the
exclusive representative of its faculty bargaining unit members." According to
the District's representative in the negotiations, a "major issue for the faculty
has been salary increases in a time when public resources are scarce due to
the state budget crisis."
FN3. At the November 2, 2004 general election, California voters approved
Proposition 59, which amends article I, section 3 of the California Constitution
by adding subdivision (b). Subdivision (b)(2) provides in part: "A statute,
court rule, or other authority, including those in effect on the effective
date of this subdivision, shall be broadly construed if it furthers the
people's right of access, and narrowly construed if it limits the right of
access. . . ."
FN4. Versaci cites New York Times Co. v. Superior Court, supra, 52
Cal.App.4th 97, for the proposition that under the Act "embarrassment is
insufficient to prevent disclosure of records." In that case, the court held the
public interest in disclosure of the names of police officers who fired shots at
citizens outweighed the officers' interest in confidentiality, and "[f]ear of
possible opprobrium or embarrassment is insufficient to prevent disclosure."
(Id. at p. 104.) The case does not concern the requested disclosure of an
employee's personal performance goals, and "' cases are not authority for
propositions not considered.' "(In re Marriage of Cornejo (1996) 13 Cal.4th
381, 388.)
FN5. We asked the parties to submit supplemental briefing on the mootness
issue. They complied, and we have taken their responses into consideration.
FN6. Versaci does not contend the trial court erred by not reviewing Dr.
Amador's personal performance goals in camera before ruling they are not
subject to disclosure under the Act. Accordingly, we do not consider the issue.
Further, given our holding we are not required to reach Versaci's contention
that section 6255 is inapplicable.
http://www.cfac.org/Attachments/versaci_v_superior_court.htm
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
PALOMAR COMMUNITY COLLEGE DISTRICT, Real Party
in Interest.
No. D044899
In the Court of Appeal of the State of California
Fourth Appellate District, Division One
03-21-2005
(Super. Ct. No. GIN033776)
Proceedings in mandate after the superior court denied request for order directing
disclosure of documents. Lisa Guy-Schall, Judge. Petition denied.
COUNSEL
Charles Wolfinger for Petitioner.
No appearance for Respondent.
Currier & Hudson, C. Anne Hudson, Andrea Naested and Ian Garriques
for Real Party in Interest.
Filed March 21, 2005
Rocco Versaci petitions this court for a writ of mandate to compel the San
Diego County Superior Court to grant his request for an order requiring the
Palomar Community College District (the District) to disclose under the
California Public Records Act (the Act) (Gov. Code, § 6250 et
seq.[FOOTNOTE 1] ) the personal performance goals of its former
Superintendent, Sherrill Amador, Ed.D., for the 2002-2003 academic year.
Versaci contends the trial court erred by finding the goals are not incorporated
into the employment contract, which would mandate their disclosure as a
matter of law under section 6254.8, and by finding the goals are exempt from
disclosure under section 6254, subdivision (c), which applies to personnel
files. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2001 the District hired Dr. Amador as its Superintendent and President,
under a four-year contract beginning the following July, at a starting salary of
$162,000. Paragraph No. 4 of the contract provided: "[Dr. Amador] will receive
an annual written evaluation by the Governing Board [the Board] no later than
May 1 of each year. This evaluation will be based on overall performance and
mutually agreed upon goals and objectives established each year prior to July
1 and will also include a mid-term progress meeting. All evaluations will be held
in a closed session." The contract also entitled Dr. Amador to a 5 percent raise
and a one-year contract extension annually subject to a positive evaluation by
the Board.
In a June 2002 closed session Dr. Amador and the Board mutually established
her personal performance goals for the 2002-2003 academic year. The District
included the goals in her personnel file and maintained their confidentiality.
Between January and May 2003 the Board held closed sessions to evaluate
Dr. Amador's performance. At a May 13 open session the Board reported that
Dr. Amador's overall evaluation was satisfactory, and in light of budgetary
constraints she agreed to forego one-half of the raise to which she was
entitled. The Board's minutes also stated: "The Board cannot ignore the
current situation that needs to be addressed by [Dr. Amador], with the support
of the . . . Board. [ ] Accordingly, the Board directs [Dr. Amador] to focus on
building relationships and improving morale, with progress to be monitored on
an ongoing basis."
At a May 27, 2003 open session the Board voted three to two to extend Dr.
Amador's contract through June 2007 and to increase her compensation by
2.5 percent. The dissenting trustees unsuccessfully sought to defer the vote
pending further evaluation of her performance in closed session.
In June 2003 Versaci asked the District, under the Act, for "a copy of the
eleven annual job goals" of Dr. Amador for the 2002-2003 academic
year.[FOOTNOTE 2] The District denied the request based on provisions of
the Act and Dr. Amador's right of privacy under article I, section 1 of the
California Constitution. It also denied Versaci's subsequent request.
In November 2003 Versaci petitioned the superior court for a writ of mandate
to compel disclosure of the information under the Act. Versaci argued section
6254.8
mandates disclosure of Dr. Amador's performance goals because they were
terms of her employment contract, and alternatively, there is no exemption
under the Act allowing the District to withhold the information. Versaci asked
the court to conduct an in camera review of the "records of the eleven annual
job goals."
In a tentative ruling, the court denied the petition on the grounds the
information was not part of the employment contract, and it is exempt from
disclosure as a personnel record under section 6254, subdivision (c), and
disclosure would invade Dr. Amador's constitutional right of privacy. After oral
argument, the court confirmed its tentative ruling and entered a final order
denying the petition. The court did not address Versaci's request for an in
camera review.
On November 13, 2003, Dr. Amador announced her retirement from the
District, effective July 1, 2004.
DISCUSSION
I
Standard of Review
"' Pursuant to section 6259, subdivision (c), an order of the trial court under
the [Act], which either directs disclosure of records by a public official or
supports the official's refusal to disclose records, is immediately reviewable by
petition to the appellate court for issuance of an extraordinary writ. . . . The
standard for review of the order is "an independent review of the trial court's
ruling; factual findings made by the trial court will be upheld if based on
substantial evidence." ' [Citation.] In contrast, the interpretation of the [Act] and
its application to undisputed facts present questions of law subject to de novo
appellate review." (CBS Broadcasting, Inc. v. Superior Court (2001) 91
Cal.App.4th 892, 905-906.)
II
The Governing Statute
California's Constitution contains an explicit right of privacy that operates
against private and governmental entities. (Art. I, § 1; Gilbert v. City of San
Jose (2003) 114 Cal.App.4th 606, 613.) "Constitutional privacy interests are
not absolute, however. They must be balanced against other important
interests." (Gilbert v. City of San Jose, at p. 613.)
The Act provides for the inspection of public records maintained by state and
local agencies. (§ 6253, subd. (a).) "The Legislature enacted the [Act] in 1968
to give the public access to information in possession of public agencies in
furtherance of the notion that government should be accountable for its
actions and, . . . to verify accountability, individuals must have access to
government files. [Citation.] But ' Recognition of the importance of preserving
individual privacy is also evident in [the Act]. The [Act] begins with the phrase:
"In enacting this chapter, the Legislature [is] mindful of the right of individuals
to privacy . . . ." [Citation.]' [Citation.] ' Disclosure of public records thus
involves two fundamental yet competing interests: (1) prevention of secrecy in
government; and (2) protection of individual privacy.' "(Gilbert v. City of San
Jose, supra, 114 Cal.App.4th at p. 610.)
The Act defines "public record" as "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).) "The definition is broad and ' "'
intended to cover every conceivable kind of record that is involved in the
governmental process[.]' "' "(Coronado Police Officers Assn. v. Carroll (2003)
106 Cal.App.4th 1001, 1006.)
"[A]ll public records are subject to disclosure unless the Legislature has
expressly provided to the contrary." (Williams v. Superior Court (1993) 5
Cal.4th 337, 346.) Under section 6254 an agency may invoke an exemption for
several types of public records from disclosure, including "[p]ersonnel,
medical, or similar files, the disclosure of which would constitute an
unwarranted invasion of personal privacy." (§ 6254, subd. (c).) Under section
6255, the so-called "catchall exception" (Bakersfield City School Dist. v.
Superior Court (2004) 118 Cal.App.4th 1041, 1045), an agency may withhold
public records even if no express exemption is applicable, 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." (§ 6255, subd. (a).)
Sections 6254, subdivision (c) and 6255, however, are inapplicable in the
context of a public employment contract. Section 6254.8 provides: "Every
employment contract between a state or local agency and any public official or
public employee is a public record which is not subject to the provisions of
Sections 6254 and 6255."
III
The Court Correctly Found Dr. Amador's Personal Performance Goals Are Not
Part of the Employment Contract Within the Meaning of Section 6254.8
Versaci contends the court erred by finding Dr. Amador's performance goals
are not part of the employment contract subject to disclosure as a matter of
law under section 6254.8. His theory is that because paragraph No. 4 of the
employment contract refers to goal setting in conjunction with Dr. Amador's
yearly performance evaluations, the written goals are "key terms" of the
contract that must be disclosed.
The Act does not define "employment contract," and it appears there are only
two published opinions discussing Government Code section 6254.8, neither
of which concerns the issue here. (See Braun v. City of Taft (1984) 154
Cal.App.3d 332; Teamsters Local 856 v. Priceless, LLC (2003) 112
Cal.App.4th 1500.) Versaci relies on Civil Code section 1642, which applies to
contracts generally, and provides that "[s]everal contracts relating to the same
matters, between the same parties, and made as parts of substantially one
transaction, are to be taken together."
"It is a familiar rule . . . that where several papers covering the same subject
matter are executed by . . . the same parties . . . , all are to be considered
together, and with the same effect as if all had been incorporated in one
document." (McAuliff v. McFadden (1919) 42 Cal.App. 505, 511, citing Civ.
Code, § 1642.) Civil Code section 1642 "is most frequently applied to writings
executed contemporaneously, but it is likewise applicable to agreements
executed by the parties at different times if the later document is in fact a part
of the same transaction." (Body-Steffner Co. v. Flothill Products (1944) 63
Cal.App.2d 555, 560.) "The contract need not recite that it ' incorporates'
another document," but "[f]or the terms of another document to be
incorporated into the document executed by the parties the reference must be
clear and unequivocal." (Shaw v. Regents of University of California (1997) 58
Cal.App.4th 44, 54.)
Whether a document is incorporated into the contract depends on the parties'
intent as it existed at the time of contracting. The parties' intent must, in the
first instance, be ascertained objectively from the contract language. (Shaw v.
Regents of University of California, supra, 58 Cal.App.4th at p. 54.) However,
"[t]he use of extrinsic evidence to show [whether] several written instruments
were intended to constitute a single contract does not involve a violation of the
parol evidence rule." (Meier v. Paul X. Smith Corp. (1962) 205 Cal.App.2d 207,
219.) The applicability of Civil Code section 1642 is a question of fact for the
trial court, and the appellate court will affirm the court's resolution if it is
supported by substantial evidence. (Brookwood v. Bank of America (1996) 45
Cal.App.4th 1667, 1675; Kwikset Locks, Inc. v. Stewart Commissaries (1964)
225 Cal.App.2d 146, 148-149.)
Versaci contends the "annual goals for 2002-2003 were mutually enforceable
terms of [Dr. Amador' s] employment contract when she and the Board agreed
on them in June 2002," because "[i]f the [Board] found her performance
satisfactory but refused to grant her a pay raise and contract extension, she
clearly has a breach of contract claim based on [its] promise to pay for her
performance of the goals." That analysis is faulty, however, because Dr.
Amador's evaluations were based on her "overall performance" in addition to
the agreed goals. Performance of the goals, standing alone, did not
automatically entitle Dr. Amador to increased contract benefits.
Additionally, Versaci submits section 6254.8 is applicable because Dr.
Amador's personal goals constitute compensation terms typically included in
an employment contract, and she cannot shield them from public scrutiny by
placing them in her personnel file. In support, he cites an Attorney General
opinion (68 Ops.Cal.Atty.Gen. 73 (1985)), in which a city manager determined
the amounts of executive managers' bonuses based on his private evaluation
of their performance. The city divulged the number of executives in the
program, the salary range for each executive, the total cost of the awards
program and the average percentage amount for all the awards, but it withheld
the individual amounts of the bonuses and reasons for awarding them.
The city justified its nondisclosure on grounds the executives who received
lesser awards may be embarrassed and disclosure may jeopardize the
benefits of candid disclosure in the confidential evaluation process. (68
Ops.Cal.Atty.Gen., supra, at p. 73.) The Attorney General, without any
analysis of section 6254.8, concluded that "[e]ach bonus constitutes ' wages'
and forms part of the employment contract," and "any record specifying the
amount of the bonus or the exceptional services for which the bonus is paid
manifests provisions of the executive's employment contract within the scope
of section 6254.8." (68 Ops.Cal.Atty.Gen., supra, at p. 75.)
Here, in contrast, there was no secrecy regarding Dr. Amador's compensation.
Rather, the employment contract set forth the amount of her salary and the
method for calculating any future salary increases, and the Board announced
in open session the result of its evaluations...whether it found her performance
satisfactory or granted a pay raise or contract extension. Versaci does not
contend the Act mandates disclosure of the evaluations conducted in closed
session.
Versaci's reliance on another Attorney General opinion (63 Ops.Cal.Atty.Gen.
215 (1980)) is likewise misplaced. In that opinion, the issue was whether a
provision of the Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et
seq.) required a hospital board to report at its next public meeting action taken
in executive session to set the compensation of an administrator. The Attorney
General answered the question in the negative, but went on to say, "that
compensation, as an integral part of the hospital administrator's employment
contract, would still be a matter of public record under section 6254.8." (63
Ops.Cal.Atty.Gen., supra, at p. 216.) Again, Dr. Amador's yearly compensation
was disclosed.
Braun v. City of Taft, supra, 154 Cal.App.3d 332, is also unavailing. In Braun,
a city councilman (Braun) was investigating purported irregularities in the city's
appointment of a firefighter (Polston) to transit administrator. After the city
manager refused to confirm or deny the appointment, Braun reviewed
Polston's personnel file and released to the press copies of two letters
concerning the appointment and its rescission and the "face sheet" of
Polston's salary card, which was modified by whiting out "transit administrator"
and writing "firefighter" over it. (Id. at p. 339.) The face sheet also revealed
information not germane to Braun's investigation, such as Polston's telephone
number, address, Social Security and credit union numbers and birth date.
Polston filed a grievance against Braun for invasion of privacy, which the city
council refused to consider in a hearing. The council, however, enacted a
resolution censuring Braun for disclosing the letters and salary card. Braun
then petitioned the superior court for a writ of mandate commanding the city to
set aside its censure. The court ruled the records were not within the
personnel file exemption and were subject to disclosure under the Act. (Braun
v. City of Taft, supra, 154 Cal.App.3d at p. 340.)
The appellate court upheld the ruling. It held the letters were subject to
disclosure under section 6254.8 as they "manifested [Polston' s] employment
contract." (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 344.) The court
concluded that "[b]ecause the letters regarded business transactions and
contained no personal information, the [lower] court properly ordered
disclosure of the letters." (Ibid.) The court rejected the city's argument the
personnel exemption applied because the letters were part of the personnel
file and their disclosure would embarrass him. (Id. at pp. 338-339, 341-342,
344.)
The court expressed concern about personal information on the face sheet of
Polston's salary card, but stated it was "reluctant to reverse on [that] limited
ground." (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 345.) In concluding
disclosure did not violate the Act's personnel records exception (§ 6254, subd.
(c)), the court explained: "The data listed on the card was not in any way
embarrassing. One's telephone number and address, although personal, are
seldom secret. There is nothing in the record to show that such information
was not available through a city directory or telephone book." (Braun v. City of
Taft, supra, 154 Cal.App.3d at p. 345.) The court added that "[f]ew persons
would find interest in [the employee' s] Social Security and credit union
numbers, or birth date." (Ibid.)
Braun does not concern the issue here, whether the employment contract's
reference to Dr. Amador's goals constituted an incorporation by reference.
Versaci has submitted no authority for the proposition an employee's personal
performance goals are ordinarily included in a public employment contract.
Further, as noted in Teamsters Local 856 v. Priceless, LLC, supra, 112
Cal.App.4th 1500, 1512, "Braun was decided before the spread of identify
theft, and the current widespread and serious concern for the privacy of an
individual's financial data. Identity thieves today would have a great deal of
interest in an individual's Social Security number and other identifying financial
data."
We conclude Dr. Amador's personal performance goals are not part of the
contract, and thus section 6254.8 is inapplicable. The mere reference in
paragraph No. 4 of the employment contract to future goal setting in
conjunction with Dr. Amador's evaluation process does not clearly and
unequivocally evidence the parties' intent to incorporate the yet to be
determined goals into the contract. Versaci's position that essentially any topic
a contract mentions is incorporated therein is unsupported by any authority
and would lead to absurd results. Indeed, paragraph No. 4 discusses goals
and evaluations, the latter of which Versaci concedes are exempt from
disclosure under the Act. He presents no persuasive theory for treating goals
and evaluations differently insofar as the incorporation question is concerned.
Moreover, the parties' intent is shown by paragraph No. 14 of the contract,
which states it "may be amended by mutual agreement of the parties,
memorialized in writing, and executed by Dr. Amador and the . . . Board." The
District produced evidence the parties never amended the contract to include
Dr. Amador's personal performance goals. Further, Dr. Amador submitted a
declaration that stated she specifically did not intend to expose her personal
performance goals to public scrutiny, and thus we may infer she did not intend
that they be incorporated into the contract and subject to disclosure as a
matter of law. Versaci produced no extrinsic evidence suggesting the parties
did intend to include them as contract terms.
IV
The Court Correctly Found Dr. Amador's Personal Performance Goals Are
Exempt From Disclosure Under Section 6254, Subdivision (c)
Versaci also contends the court erred by finding Dr. Amador's performance
goals are exempt from disclosure under section 6254, subdivision (c). We are
unpersuaded.
The Act was modeled after the federal Freedom of Information Act (FOIA) (5
U.S.C. § 552 et seq.), and thus the "' legislative history and judicial
construction of the FOIA . . . ' serve to illuminate the interpretation of its
California counterpart.' "(Times Mirror Co. v. Superior Court (1991) 53 Cal.3d
1325, 1338.)
"[B]oth the FOIA and the Act expressly recognize that the public's right to
disclosure of public records is not absolute." (City of San Jose v. Superior
Court (1999) 74 Cal.App.4th 1008, 1017.) "' [O]ne does not lose his [or her]
right to privacy upon accepting public employment . . . .' "(New York Times Co.
v. Superior Court (1997) 52 Cal.App.4th 97, 100.) Accordingly, subdivision (c)
of section 6254 gives a public agency discretion to withhold "[p]ersonnel,
medical, or similar files, the disclosure of which would constitute an
unwarranted invasion of personal privacy." The FOIA's Exemption 6
(Exemption 6) is substantively identical. (5 U.S.C. § 522(b)(6).)
Courts apply a three-step analysis in determining whether Exemption 6
applies. 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
minimis disclosure would not amount to a ' clearly unwarranted invasion of
personal privacy,' [citation], in light of FOIA's broad policy favoring disclosure."
(Ripskis v. Dept. of Housing and Urban Development (D.C. Cir. 1984) 746 F.2d
1, 10 (Ripskis).) Lastly, the court must determine whether the potential harm to
privacy interests from disclosure outweighs the public interest in disclosure.
(Ibid.; see also New York Times Co. v. Superior Court, supra, 52 Cal.App.4th
at p. 104 ["Section 6254, subdivision (c), allows for a weighing of interests by
the trial court" ].) "' Congress sought to construct an exemption that would
require a balancing of the individual's right of privacy against the preservation
of the basic purpose of the [FOIA].' [Citations.] The burden is on the agency to
persuade the court that the exemption is appropriate." (Ripskis, supra, 746
F.2d at p. 10.) Further, exceptions to the general rule of disclosure are
construed narrowly. (New York Times, supra, at p. 104.)[FOOTNOTE 3]
The "' primary concern of Congress in drafting Exemption 6 was to provide for
the confidentiality of personal matters.' "(United States Dept. of State v.
Washington Post Co. (1982) 456 U.S. 595, 599-600 (Washington Post).) To
qualify for protection under the exemption, however, the documents sought
need not contain "intimate details" or "highly personal" information. Rather, the
threshold requirement is minimal and "nonintimate information about a
particular individual which happens to be contained in a personnel or medical
file can be withheld if its release would constitute a clearly unwarranted
invasion of personal privacy." (Id. at p. 601.) In Washington Post, the court
held Congress did not intend "to limit Exemption 6 to a narrow class of files
containing only a discrete kind of personal information," and rather, the "'
exemption [was] intended to cover detailed Government records on an
individual which can be identified as applying to that individual.' "(Id. at p. 602.)
It is undisputed that employee performance evaluations fall within the ambit of
Exemption 6. (Ripskis, supra, 746 F.2d at p. 10; Celmins v. U.S. Dept. of
Treasury (D.D.C. 1977) 457 F.Supp. 13, 15.) "In discussing the general
attributes of a personnel file, the United States Supreme Court has stated that
an individual's personnel file generally contains ' "vast amounts of personal
data," ' including ' . . . results of examinations [and] evaluations of his [or her]
work performance.' The court noted that access to personnel files is '
drastically limited . . . only to supervisory personnel directly involved with the
individual . . . .' "(Teamsters Local 856 v. Priceless, LLC, supra, 112
Cal.App.4th at p. 1515, citing Department of the Air Force v. Rose (1976) 425
U.S. 352, 369, 377.)
Versaci concedes Dr. Amador's evaluations are not subject to disclosure, but
he asserts her personal performance goals, on which her evaluations were in
part based, must be disclosed because the District did not dispute the goals
related to her official duties. In Metropolitan Life Ins. Co. v. Usery (D.D.C.
1976) 426 F.Supp. 150, 168, however, the court held "personal preferences
and goals," as well as evaluations, are "similar" files within the meaning of
Exemption 6, even when they do not contain derogatory information, "in that
they reflect highly personal details about . . . employees." We agree, and
conclude Dr. Amador's personal performance goals constitute a personnel file
or other "similar" file within the meaning of section 6254, subdivision (c).
Further, we conclude disclosure of Dr. Amador's personal performance goals
would "compromise substantial privacy interests." (Ripskis, supra, 746 F.2d at
p. 10.) In Metropolitan Life Ins. Co. v. Usery, supra, 426 F.Supp. at page 168,
the court explained that the "disclosure of negative comments or information
about an employee on these subjects [including personal preferences and
goals] could be quite embarrassing and painful to the employee. While many
of the comments and much of the information are favorable or neutral,
[Exemption 6] 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."
[FOOTNOTE 4] (Fn. omitted.)
Turning to the final prong of our analysis, weighing the competing interests, we
must determine "the extent to which disclosure of the requested item of
information will shed light on the public agency's performance of its duty."
(Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th at p. 1519.)
Versaci contends that disclosing Dr. Amador's personal performance goals
"allows public review and comment on relevant aspects of [her] performance
over the year." As the District points out, however, the public interest in Dr.
Amador's performance is moot in light of her retirement effective July 1,
2004.[FOOTNOTE 5]
Versaci also contends disclosure of Dr. Amador's personal performance goals
would allow the public to evaluate the trustees' performance in giving her
satisfactory evaluations, raises and contract extensions, and her retirement
does not render that issue moot. Versaci asks, "How can the public intelligently
decide whether to support or oppose the trustees at the next election without
knowing what goals they were using?" The public, of course, has a legitimate
interest in how the trustees conduct the District's business and manage public
revenues. We may consider, however, whether the public interest can be
substantially advanced by means other than the requested disclosure.
(Ripskis, supra, 746 F.2d at p. 10.)
Under the employment contract, Dr. Amador's evaluations were based on her
"overall performance" in addition to her personal performance goals. The
District produced evidence that in open session the Board adopted numerous
documents under which the District is run, including a "Strategic Plan," "Annual
Implementation Plans" and "Board Goals," and the documents are available to
the public. Further, as the District's Superintendent, Dr. Amador was "fully
accountable to the Board and to the public for achieving the goals" set forth in
those documents. Without resorting to her personnel file, a substantial amount
of information is available to assist the public in assessing the trustees'
conduct vis-.... -vis Dr. Amador.
Additionally, we conclude Dr. Amador has a reasonable expectation of privacy
in her personal performance goals. (See Teamsters Local 856 v. Priceless,
LLC, supra, 112 Cal.App.4th at p. 1516 [reasonable expectation of privacy in
salary details contained in employees' personnel files precluded disclosure
under the Act].) She submitted a declaration that stated, "[o]ne of my priorities
in . . . negotiation [of my contract] was to assure that my performance
evaluation, to include my personal performance goals and objectives . . . ,
[was] kept confidential and discussed only in closed session meetings of the
Boards. . . . I have never and would never agree to have any component of my
performance evaluation released to the public."
It is true that "a mere promise of secrecy cannot always shield a public record
from disclosure." (Teamsters Local 856 v. Priceless, LLC, supra, 112
Cal.App.4th at pp. 1513-1514.) The District, however, produced evidence that
an employee's personal performance goals are customarily kept confidential.
Dr. Amador's declaration stated she had been in the education field since
1978 and no school she ever worked for "released to the public any part of an
employee's personal performance evaluation." (Italics added.) Dr. Jack
Miyamoto, the District's Assistant Superintendent/Vice President of Human
Resource Services and Affirmative Action, submitted a declaration that stated
"personal goals and objectives sometimes include areas of the specific
employee's work performance which require improvement," and, "I have never
in my career released to the general public any component of any employee's
performance evaluation without consent." "' A "reasonable" expectation of
privacy is an objective entitlement founded on broadly based and widely
accepted community norms.' "(Id. at pp. 1515-1516.)
Moreover, the Brown Act 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).) 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." (San Diego Union v. City Council (1983) 146 Cal.App.3d
947, 955.) Under the employment contract, Dr. Amador's personal
performance goals were an integral part of the confidential evaluation process.
"There is an inherent tension between the public's right to know and the public
interest in protecting public servants, as well as protecting private citizens,
from unwarranted invasion of privacy. [Citation.] On certain occasions, the
public's right to disclosure must yield to the privacy rights of governmental
agents." (New York Times Co. v. Superior Court, supra, 52 Cal.App.4th at p.
100.) We conclude this is such a case, as Dr. Amador's privacy interest in her
entire evaluation process...including her personal performance
goals...outweighs the public's minimal interest in the matter.[FOOTNOTE 6]
DISPOSITION
The petition is denied. Costs in this proceeding are awarded to the District.
McCONNELL, P. J.
WE CONCUR: HALLER, J., McDONALD, J.
March 22, 2005 CALIFORNIA
::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::
FN1. Statutory references are to the Government Code unless otherwise
specified.
FN2. Versaci is the president of the District's faculty union, and the
District "has been involved in ongoing and extensive negotiations"
with him "over the District's first collective bargaining agreement with the
exclusive representative of its faculty bargaining unit members." According to
the District's representative in the negotiations, a "major issue for the faculty
has been salary increases in a time when public resources are scarce due to
the state budget crisis."
FN3. At the November 2, 2004 general election, California voters approved
Proposition 59, which amends article I, section 3 of the California Constitution
by adding subdivision (b). Subdivision (b)(2) provides in part: "A statute,
court rule, or other authority, including those in effect on the effective
date of this subdivision, shall be broadly construed if it furthers the
people's right of access, and narrowly construed if it limits the right of
access. . . ."
FN4. Versaci cites New York Times Co. v. Superior Court, supra, 52
Cal.App.4th 97, for the proposition that under the Act "embarrassment is
insufficient to prevent disclosure of records." In that case, the court held the
public interest in disclosure of the names of police officers who fired shots at
citizens outweighed the officers' interest in confidentiality, and "[f]ear of
possible opprobrium or embarrassment is insufficient to prevent disclosure."
(Id. at p. 104.) The case does not concern the requested disclosure of an
employee's personal performance goals, and "' cases are not authority for
propositions not considered.' "(In re Marriage of Cornejo (1996) 13 Cal.4th
381, 388.)
FN5. We asked the parties to submit supplemental briefing on the mootness
issue. They complied, and we have taken their responses into consideration.
FN6. Versaci does not contend the trial court erred by not reviewing Dr.
Amador's personal performance goals in camera before ruling they are not
subject to disclosure under the Act. Accordingly, we do not consider the issue.
Further, given our holding we are not required to reach Versaci's contention
that section 6255 is inapplicable.
http://www.cfac.org/Attachments/versaci_v_superior_court.htm
Palomar College
Versaci v. Superior Court
(Palomar Community College District)
(Palomar Community College District)
Public Records lawsuit
Public entities are given a lot of protection by the California Court
of Appeal.
The Fourth District Court of Appeal ruled that a public school
superintendent's personal performance goals are exempt
from disclosure under the Public Records Act, even though
the superintendent's employment contract, and the school
board's evaluation of his performance, are public records.
of Appeal.
The Fourth District Court of Appeal ruled that a public school
superintendent's personal performance goals are exempt
from disclosure under the Public Records Act, even though
the superintendent's employment contract, and the school
board's evaluation of his performance, are public records.
Versaci is the president of
the District's faculty union,
and the District "has been
involved in ongoing and
extensive negotiations"
with him.
At the November 2, 2004
general election, California
voters approved Proposition
59, which amends article I,
section 3 of the California
Constitution by adding
subdivision (b). Subdivision
(b)(2) provides in part:
"A statute, court rule, or
other authority,
including those in effect
on the effective date of
this subdivision, shall be
broadly construed if it
furthers the people's
right of access, and
narrowly construed if it
limits the right of access.
. . ."
the District's faculty union,
and the District "has been
involved in ongoing and
extensive negotiations"
with him.
At the November 2, 2004
general election, California
voters approved Proposition
59, which amends article I,
section 3 of the California
Constitution by adding
subdivision (b). Subdivision
(b)(2) provides in part:
"A statute, court rule, or
other authority,
including those in effect
on the effective date of
this subdivision, shall be
broadly construed if it
furthers the people's
right of access, and
narrowly construed if it
limits the right of access.
. . ."
Missing SDCOE invoices
from Stutz: June,
October and Nov 2003
from Stutz: June,
October and Nov 2003
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