Filed 5/26/15 inewsource v. Super. Ct. Ca4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



INEWSOURCE,                                                      D067118

         Petitioner,                                             (San Diego County Super. Ct.
                                                                  No. 37-2014-00007070-CU-WM-CTL)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;

NORTH COUNTY TRANSIT DISTRICT,

         Real Party in Interest.


         ORIGINAL PROCEEDINGS in mandate. Joan M. Lewis, Judge. Petition

granted in part and denied in part; request for judicial notice granted in part and denied in

part.

         Sheppard, Mullin, Richter & Hampton and Guylyn R. Cummins for Petitioner.

         No appearance for Respondent.
       McDougal, Love, Eckis, Boehmer & Foley, Steven E. Boehmer and M. Anne

Gregory for Real Party in Interest.

       Petitioner inewsource seeks disclosure of documents from real party in interest

North County Transit District (the District) under the California Public Records Act

(PRA). (Gov. Code, § 6250 et seq.)1 The documents at issue reflect the results of a

"Leadership Assessment Program" conducted at the District's expense by the Rady

School of Management at the University of California at San Diego. In response to

inewsource's PRA request, the District declined to provide the documents on the grounds

they were exempt from disclosure. The trial court agreed and denied inewsource's

petition for writ of mandate compelling disclosure.

       Inewsource petitions this court for a writ of mandate directing the trial court to

vacate its order, grant the petition, and compel disclosure. Inewsource contends the

exemptions cited by the trial court, for personnel files (§ 6254, subd. (c)) and the PRA's

"catch-all" provision (§ 6255, subd. (a)), are inapplicable. We agree in part, and therefore

grant the petition in part, as we will explain.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Inewsource is a nonprofit organization based in San Diego, California, and

engaged in investigative journalism. Inewsource publishes its content on the Internet and

through its partnership with KPBS, a local public radio and television station. Among

inewsource's subjects have been the management, operations, and finances of the District.


1      Further statutory references are to the Government Code unless otherwise
specified.
                                                  2
Inewsource has published dozens of articles, Internet posts, and other items about the

District.

       Created by the California Legislature in 1975, the District is a public entity that

develops and operates mass transit services in the northern portion of San Diego County.

These services include the COASTER commuter rail, the SPRINTER light rail, the

BREEZE fixed-route bus system, the FLEX on-demand system, and the LIFT paratransit

service. The District is supervised by a nine-member board of directors consisting of

elected officials from eight cities in its service area and from San Diego County.

       In December 2013, 13 District senior management staff participated in a

"Leadership Assessment Program" (Program) at the Rady School of Management at the

University of California at San Diego. The participants attended the Program at the

District's expense. The scope of work for the Program described it in part as follows: "A

structured leadership assessment experience offers an opportunity to demonstrate skills

and capabilities in a challenging environment and to receive feedback on that

performance. . . . [¶] . . . [¶] . . . By providing specific, actionable evaluations and

feedback, developmental activities can be targeted to skills that will make the greatest

difference in the success of both the individual and the organization."

       The scope of work touts benefits of the Program for both the participating

individuals and their organization. For individuals, the Program provides "a foundation

for development planning," including (1) "[c]omprehensive, integrated feedback" from

the Program, (2) "[a] summary of results and recommendations for ongoing

development," and (3) "[a] comprehensive 360-degree feedback summary of how others

                                               3
perceive the participant's skills and abilities." For the organization, the Program provides

"a solid foundation for individual development and succession planning efforts" through

(1) "[a] report on each participant detailing their strengths and development needs," (2)

"[a]n evaluation of each participant on each of the organization's key competencies," and

(3) "[a] talent management summary that shows where leadership strengths and

development needs are greatest within a team of participants."2

       The latter three items appear to comprise the documents at issue in this proceeding

(hereinafter, the Rady documents). The participant reports are tailored to each individual

and provide specific, personalized written feedback and evaluations along each of the

categories (or "competencies") assessed. These categories include general managerial

skill sets and more practical organizational competencies. The participant evaluation

contains a table that provides a single rating in each category for each participant, along

with the participant's name. (The participant evaluation is the first page of the Rady

documents as submitted to this court.) The talent management summary contains a table

that lists only the categories, not the participants, and shows how the organization as a

whole fared in each category. Although the talent management summary is composed of

the ratings of the individual participants, the ratings are reordered within each category

such that an individual participant's ratings across each category cannot be reconstructed

from the summary. No participant names are listed in the talent management summary.




2     The scope of work also notes that the Program achieves "[a] balance between
business acumen and leadership characteristics, competencies and attributes."
                                             4
(The talent management summary is the second page of the Rady documents as

submitted to this court.)3

       The District's human resources manager, Karen Tucholski, told participants that

the results of the Program would be confidential. Tucholski said the results "were for

professional development purposes only and would be part of each employee's personnel

file accessible only by authorized [District] personnel such as Human Resources or the

employee's supervisor."

       A year later, Brad Racino, an investigative reporter for inewsource, received

information that District employees had participated in the Program. He filed a PRA

request for "[a]ny and all studies or reports compiled by the Rady School of Management

concerning [the District] in electronic format." Two days later, the District denied

Racino's request on the grounds the requested documents were exempt as personnel files

under section 6254, subdivision (c).

       Inewsource filed a petition for writ of mandate in the trial court seeking an order

compelling disclosure of the Rady documents and other relief. The District opposed. In

addition to the personnel records exemption, the District argued the Rady documents

were exempt from disclosure under the PRA's "catch-all" exemption in section 6255,

subdivision (a).




3     Even if the documents described in the scope of work do not correspond exactly to
the Rady documents at issue here, we find the names used in the scope of work useful
and will use them to refer to the Rady documents that have been submitted to us as we
have described them.
                                             5
       After examining the Rady documents in camera, the trial court denied

inewsource's petition. The court found that both exemptions urged by the District

applied: "Having reviewed the records, the Court first finds that the Rady documents are

'personnel, medical, or similar files, . . .' Accordingly, the Court balances the privacy

interests of the parties subject [to] these documents against the public interest in

disclosure. The Court finds the balance weighs in favor of non-disclosure. Here, the

records would not contribute to the public's understanding of government and would not

shed light on what 'the government has been up to.' [¶] The Rady documents are not

documents reflecting how [the District] conducts its business. Rather, the records

represent an assessment of the individual's strengths and weaknesses in various tested

areas and any recommendations relative thereto. Having reviewed these records, the

Court finds them to be akin to performance evaluations and any public interest in the

records would be minimal at best. [¶] . . . [¶] The Court further finds that the public

interest in disclosure of these documents is outweighed by the public interest in

nondisclosure. [(§ 6255, subd. (a).)] Assuming a public interest exists, the Court finds

that . . . disclosure of these documents would have [a] detrimental effect on the

management employees at [the District] by creating unhealthy comparisons and potential

embarrassment between management employees and their subordinate employees."

       Inewsource petitioned this court for a writ of mandate directing the superior court

to vacate its order, grant the petition, and compel disclosure of the Rady documents. We

requested and received a sealed copy of the documents at issue, which we have reviewed.

We issued an order to show cause and will now grant the petition in part.

                                              6
                                       DISCUSSION

                                              I

       As an initial matter, we must consider inewsource's request for judicial notice,

which includes requests inewsource made to the trial court (but for which the trial court

issued no ruling) and requests to this court in the first instance.4 Evidence Code section

459, governing requests for judicial notice in this court, provides in part as follows: "The

reviewing court shall take judicial notice of: (1) each matter properly noticed by the trial

court; and (2) each matter that the trial court was required to notice under [Evidence

Code] Section 451 or 453. The reviewing court may take judicial notice of any matter

specified in [Evidence Code] Section 452." (Evid. Code, § 459, subd. (a); see Lockley v.

Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

If a matter is properly subject to judicial notice, "[e]xclusionary rules of evidence do not

apply except for [Evidence Code] Section 352 and the rules of privilege." (Evid. Code,

§ 454, subd. (b)(2).)

       Inewsource's first request for judicial notice in the trial court covered four news

articles published by inewsource (and in some cases KPBS as well) concerning alleged

incompetence and malfeasance at the District and one memorandum issued by the

California Department of Industrial Relations discussing regulatory requirements related

to personnel records. The fact that news articles have been published may be judicially



4      Prior to the issuance of our order to show cause in this matter, inewsource
submitted an application for judicial notice. Because inewsource's motion for judicial
notice supersedes the application, we deny the application as moot.
                                              7
noticed under Evidence Code section 452, subdivisions (g) and (h). (Ragland v. U.S.

Bank National Assn. (2012) 209 Cal.App.4th 182, 193 (Ragland).) However, a court

may not take judicial notice of the truth of the matters stated therein. (Id. at pp. 193-194.)

Similarly, official government records may be judicially noticed under Evidence Code

section 452, subdivision (c), but the truth of the matters stated therein may not.

(Ragland, supra, 209 Cal.App.4th at p. 193 ["Although the audit report is a government

document, we may not judicially notice the truth of its contents."].) We further find that

these matters have at least some relevance to the issues before the court. Upon the proper

request of a party, the trial court was required to judicially notice the existence of the

news articles and the state memorandum. (Evid. Code, § 453.) We are therefore required

to do so as well. (Evid. Code, § 459, subd. (a).)

       Inewsource's second request for judicial notice in the trial court covered more than

30 documents. The existence of the news stories and Internet Web pages referenced in

the request will be judicially noticed for the reasons we have already stated.5 (Evid.

Code, §§ 452, subds. (g) & (h); 453, 459, subd. (a); see Ragland, supra, 209 Cal.App.4th

at p. 193.) Similarly, the existence of the District correspondence, District e-mails, the

District's annual report, a third-party audit commissioned by the District, and other

District documents referenced in the request will be judicially noticed. (Evid. Code,



5       We will not take judicial notice of the Wikipedia page entitled "No bid contract"
on the grounds the trial court was not required to judicially notice it because it had no
relevance to the disposition of inewsource's petition. (People v. McKinzie (2012) 54
Cal.4th 1302, 1326 [" 'Although a court may judicially notice a variety of matters
[citation], only relevant material may be noticed.' "].)
                                              8
§§ 452, subds. (c), (g) & (h); 453, 459, subd. (a); see Landstar Global Logistics, Inc. v.

Robinson & Robinson, Inc. (2013) 216 Cal.App.4th 378, 388, fn. 4; Ragland, supra, 209

Cal.App.4th at p. 193.) The referenced portions of the Public Contract Code, sections

100 through 102, are subject to mandatory judicial notice. (Evid. Code, §§ 451, subd.

(a); 459, subd. (a).) Again, we find that these matters have at least some relevance to the

issues before the court. We will not take judicial notice of the existence or contents of

the inewsource correspondence referenced in the request because they are not judicially

noticeable as a fact or proposition in common knowledge or not reasonably subject to

dispute. (See Evid. Code, § 452, subds. (g) & (h).) We also will not take judicial notice

of District documents and correspondence filed in inewsource's exhibit appendix to its

trial court writ petition. Those documents are already part of the record before this court,

and judicial notice is unnecessary. Any objections made in the trial court have not been

adequately urged on appeal and supported by reasoned argument and authority. They are

therefore waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th

939, 956.)

       Inewsource's request for judicial notice in this court covers the District's business

case justification for the Program, other District documents and correspondence, an

Internet Web page published by the California Department of Human Resources, two

California Regional Water Quality Board orders, portions of a Federal Transit

Administration review of the District, and various inewsource news articles and Internet

Web pages. Inewsource contends judicial notice of these documents is warranted under

Evidence Code section 452. Inewsource did not seek judicial notice of these documents

                                              9
in the trial court, claiming without explanation that "page constraints" prevented it from

doing so. To the extent these documents are already part of the record, e.g., in

inewsource's exhibit appendix, judicial notice is unnecessary as we have explained. As to

documents not already part of the record, we decline to take judicial notice of these

documents in these proceedings because inewsource did not request judicial notice in the

trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn.

3; Safeco Ins. Co. of America v. Superior Court (2009) 173 Cal.App.4th 814, 834, fn. 14.)

                                              II

       We now turn to the merits of inewsource's petition. "The PRA and the California

Constitution provide the public with a right of access to government information. As [the

Supreme Court] has explained: 'Openness in government is essential to the functioning

of a democracy. "Implicit in the democratic process is the notion that government should

be accountable for its actions. In order to verify accountability, individuals must have

access to government files. Such access permits checks against the arbitrary exercise of

official power and secrecy in the political process." [Citation.]' [Citation.] In adopting

the PRA, the Legislature declared that 'access to information concerning the conduct of

the people's business is a fundamental and necessary right of every person in this state.'

(§ 6250.) 'As the result of an initiative adopted by the voters in 2004, this principle is

now enshrined in the state Constitution . . . .' [Citation.] The California Constitution,

article I, section 3, subdivision (b)(1) provides: 'The people have the right of access to

information concerning the conduct of the people's business, and therefore, the meetings



                                             10
of public bodies and the writings of public officials and agencies shall be open to public

scrutiny.' " (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 164.)

       The PRA "was passed for the explicit purpose of 'increasing freedom of

information' by giving the public 'access to information in possession of public agencies'

[citation]. Maximum disclosure of the conduct of governmental operations was to be

promoted by the [PRA]." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651-652.) "In

general . . . all public records are subject to disclosure unless the Legislature has

expressly provided to the contrary." (Los Angeles Unified School Dist. v. Superior Court

(2014) 228 Cal.App.4th 222, 238 (LAUSD).)

       "The Legislature has been 'mindful of the right of individuals to privacy.'

(§ 6250.) Set forth in the [PRA] are numerous exceptions to the requirement of public

disclosure, many of which are designed to protect individual privacy. (See § 6254.) In

addition, a catchall exception applies if '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).) Unless one of the exceptions stated in

the [PRA] applies, the public is entitled to access to '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); see § 6253, subd. (a).)" (International

Federation of Professional & Technical Engineers, Local 21, AFL–CIO v. Superior

Court (2007) 42 Cal.4th 319, 329 (International Federation), fn. omitted.)

       "In 2004, California's voters passed an initiative measure that added to the state

Constitution a provision directing the courts to broadly construe statutes that grant public

                                              11
access to government information and to narrowly construe statutes that limit such

access. (Cal. Const. art. I, § 3, subd. (b)(2).) That provision, however, does not affect the

construction of any statute 'to the extent . . . it protects [the] right to privacy . . . .' (Cal.

Const. art. I, § 3, subd. (b)(3).)" (Long Beach Police Officers Assn. v. City of Long Beach

(2014) 59 Cal.4th 59, 68.)

       "Interpretation of the [PRA] and its application to undisputed facts present

questions of law subject to de novo appellate review. [Citation.] And when it comes to

balancing various interests under the [PRA], while we accept the trial court's express and

implied factual determinations if supported by the record, 'we undertake the weighing

process anew." (LAUSD, supra, 228 Cal.App.4th at p. 237.) "An agency opposing

disclosure bears the burden of proving that an exemption applies." (Id. at p. 239.)

                                                 III

       The District first asserts that the Rady documents are part of the participants'

personnel files and are therefore exempt under section 6254, subdivision (c).6 That

statute exempts from disclosure "[p]ersonnel, medical, or similar files, the disclosure of



6      The District also makes the following threshold argument: "[The District] has
always maintained that the Rady documents are not public records[;] they are private
personnel records and exempt from disclosure under Government Code section 6254
subdivision (c)." The District appears to misunderstand the PRA. Personnel records
exempt from disclosure are public records; otherwise they would need no exemption.
(§§ 6252, subd. (e); 6254.) In any event, the District offers no reasoned argument or
authority for the proposition that the Rady documents are not public records. Based on
our review, we conclude they are public records within the meaning of the PRA.
(§ 6252; see San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774
(San Gabriel Tribune).)

                                                 12
which would constitute an unwarranted invasion of personal privacy." (§ 6254, subd.

(c).)

        Relying on analogous federal law under the Freedom of Information Act (FOIA),

this court has applied a three-step analysis to evaluate an argument based on this

exemption: "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 minimus disclosure would not

amount to a "clearly unwarranted invasion of personal privacy" [citation], in light of

FOIA's broad policy favoring disclosure.' [Citation.] Lastly, the court must determine

whether the potential harm to privacy interests from disclosure outweighs the public

interest in disclosure." (Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 818

(Versaci); see BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 755 (BRV).)7

        To qualify as personnel or similar files, documents "need not contain intimate

details or highly personal information. They may simply be government records

containing 'information which applies to a particular individual.' " (LAUSD, supra, 228

Cal.App.4th at p. 239.) Two types of records in the Rady documents, the participant


7      Inewsource contends Versaci is not good law because it relies on analogous cases
interpreting FOIA and it cites a case (Teamsters Local 856 v. Priceless, LLC (2003) 112
Cal.App.4th 1500), the conclusion of which the Supreme Court later disagreed with (see
International Federation, supra, 42 Cal.4th at p. 336). We disagree. Cases interpreting
FOIA can inform California courts' interpretation of the PRA in many contexts, even if
the two statutory schemes differ in certain ways. (See Williams v. Superior Court (1993)
5 Cal.4th 337, 352.) Versaci's citation to Teamsters Local 856 v. Priceless, LLC also
does not undermine the analysis or conclusions in Versaci on which we rely.
                                              13
reports and participant evaluations, appear to be personnel or similar files. They contain

information specific to individual participants, and the competency evaluations in those

records reflect information that is traditionally contained in personnel files (e.g.,

performance reviews). (See ibid.; Versaci, supra, 127 Cal.App.4th at p. 819; see also

Milner v. Department of Navy (2011) 562 U.S. 562 [" '[T]he common and congressional

meaning of . . . "personnel file" ' is the file 'showing, for example, where [an employee]

was born, the names of his parents, where he has lived from time to time, his . . . school

records, results of examinations, [and] evaluations of his work performance.' "].) The

talent management summary presents a closer question. The information in that record

reflects individual, albeit anonymous, information and evaluations. For purposes of our

discussion, we will accept the District's contention that the talent management summary,

too, is a personnel or similar file.

       Next we evaluate the privacy interests implicated by the Rady documents.

(Versaci, supra, 127 Cal.App.4th at p. 818.) "Public employees have a legally protected

interest in their personnel files." (BRV, supra, 143 Cal.App.4th at p. 756.) The strength

of that interest, however, will vary depending on the information at issue. Again, we find

it useful to distinguish the participant reports and participant evaluation, on one hand,

from the talent management summary, on the other.

       The participant reports and participant evaluation reflect individualized

assessments of each participant. In the participant reports, these assessments include

written narratives describing the participant's personality traits, work ethic, and similar

qualities. In the participant evaluation, the assessments are distilled into a rating for each

                                              14
assessed category. Based on this content, we conclude that disclosure of the participant

reports and participant evaluation in the Rady documents "would 'compromise substantial

privacy interests.' " (Versaci, supra, 127 Cal.App.4th at p. 820 [disclosure of an

employee's "personal performance goals"].) "[T]he 'disclosure of negative comments or

information about an employee on these subjects . . . could be quite embarrassing and

painful to the employee. While many of the comments and much of the information are

favorable or neutral, [the relevant exemption] 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.' " (Ibid.)

       The talent management summary presents no similar danger of embarrassment or

pain to individual employees. While the talent management summary provides

information about the participants as a whole (e.g., whether most participants performed

well in a particular category), the information cannot be linked to any individual

participant. Nor does the talent management summary disclose whether any individual

participant did well in one category and worse in another category; the ratings within

each category are reordered from best to worst. The privacy interest in such collective

assessments, while perhaps not de minimus, is nonetheless severely attenuated.

       Our final step is balancing the privacy interests implicated by the Rady documents

against any public interest in their disclosure. We "must determine whether the potential

harm to privacy interests from disclosure outweighs the public interest in disclosure."

(Versaci, supra, 127 Cal.App.4th at p. 818.) Fundamentally, the strength of the public

                                            15
interest depends on " 'the extent to which disclosure of the requested item of information

will shed light on the public agency's performance of its duty.' " (Id. at p. 820.) "While,

as a threshold matter, the records must pertain to the conduct of the people's business, '

"[t]he weight of that interest is proportionate to the gravity of the governmental tasks

sought to be illuminated and the directness with which the disclosure will serve to

illuminate." ' " (LAUSD, supra, 228 Cal.App.4th at p. 242; see Connell v. Superior Court

(1997) 56 Cal.App.4th 601, 616.)

       As an initial matter, we note that the Program—and therefore the Rady

documents—were procured with District funds. The public therefore has an interest in

knowing what was purchased with those funds, whether the Program was worth what the

District spent, and whether the Program provided utility to the District. (See

International Federation, supra, 42 Cal.4th at p. 333 [finding a "strong public interest in

knowing how the government spends its money"].) The public also has an interest in

knowing how the District identifies professional development opportunities and evaluates

its senior staff, which were in part purposes of the Program. The Rady documents would

plainly shed light on the District's activities in these ways.

       The Rady documents also shed light on the District's ability to perform its primary

duty: developing and operating mass transit systems in San Diego County. "[P]ublic

access makes it possible for members of the public ' "to expose corruption, incompetence,

inefficiency, prejudice, and favoritism." ' " (International Federation, supra, 42 Cal.4th

at p. 333.) The Program was designed to assess the competence of the District's senior

managers in various categories (including "the organization's key competencies ") and

                                              16
identify development opportunities. The Rady documents reflect the results of that

assessment, including whether the individual participants performed well on the

Program's various measures of managerial competency. While the Program focused on

the competence of individual managers, the District's ability to perform its duty depends

on the abilities of the individuals within the District's organization to act competently.

(See BRV, supra, 143 Cal.App.4th at p. 757 ["Without doubt, the public has a significant

interest in the professional competence and conduct of a school district superintendent

and high school principal."].) The Rady documents are therefore relevant to an important

public interest.

       Although the Rady documents are somewhat abstracted from the specific details

of the participants' everyday work, as the District repeatedly points out, the Rady

documents nonetheless provide valuable insight into the strengths and weaknesses of the

participating managers in their senior roles at the District—and the strengths and

weaknesses of the management team as a whole. Indeed, those are two of the main

purposes of the Program as set out in its scope of work.8



8       Contrary to inewsource's contention, the Rady documents do not involve an
inquiry into instances of District wrongdoing, well-founded or otherwise. Instead, as we
have discussed, they represent the evaluation of the participating managers in various
general categories of managerial competency. Although the Rady documents may have
some relevance to inewsource's allegations of wrongdoing or malfeasance, because they
relate generally to the ability of the participating mangers to perform in their positions,
there is no heightened public interest based on that tenuous connection. The standard for
disclosure articulated by American Federation of State etc. Employees v. Regents of the
University of California (1978) 80 Cal.App.3d 913 is therefore inapplicable. "[That] case
provides that where complaints of a public employee's wrongdoing and resulting
disciplinary investigation reveal allegations of a substantial nature, as distinct from
                                             17
       The participant evaluation and talent management summary, by presenting the

ratings of the participant group as a whole, bear most directly on the District's

competence to perform its public duties. (See LAUSD, supra, 228 Cal.App.4th at p. 243

["There can be little doubt that a public interest exists in 'teacher AGT scores' [i.e.,

teaching achievement metrics] as a whole."].) The additional information in the

participant reports, however, is only indirectly relevant to the operations of the District.

Much of the information in the participant reports is tailored to the individual traits and

personalities of the participants. While the public has some interest in knowing and

evaluating the traits and personalities of senior managers at a public agency, based on our

review most of the information in the participant reports would be primarily useful only

to the individual participants. The public's ability to understand more about the District

based on this additional information would be low.

       Balancing the public and private interests, we conclude that the participant reports

and participant evaluation fall within the PRA's personnel records exception. (See

§ 6254, subd. (c).) These documents reflect the ratings and assessments of each

participant, identified by name, which engenders a strong privacy interest in their

nondisclosure. They are akin to performance evaluations, which implicate substantial




baseless or trivial, and there is reasonable cause to believe the complaint is well founded,
public employee privacy must give way to the public's right to know." (Bakersfield City
School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1046.) The circumstances
here are readily distinguishable. (See LAUSD, supra, 228 Cal.App.4th at p. 253 ["That is
a far cry from the instant case, where there is no specific incident to investigate, just the
ongoing (albeit important) work of teachers doing their jobs."].)
                                              18
privacy interests.9 As to these documents, the strong interest in protecting the privacy of

the individual participants outweighs the public interest in uncovering potential

incompetence. (See Versaci, supra, 127 Cal.App.4th at p. 822 [holding that a public

employee's "privacy interest in her entire evaluation process including her personal

performance goals outweighs the public's minimal interest in the matter"].)

       Inewsource points out that a public official generally has "a significantly reduced

expectation of privacy in matters of his public employment." (BRV, supra, 143

Cal.App.4th at p. 758.) While that principle is correct as a general matter, there are

specific instances in which a public official's privacy interests will outweigh the public

interest in disclosure. (See, e.g., Versaci, supra, 127 Cal.App.4th at p. 822.) "[E]ven

government employees have privacy rights and ' "on certain occasions, the public's right

to disclosure must yield to the privacy rights of governmental agents." ' [Citation.]

'[O]ne does not lose his right to privacy upon accepting public employment . . . .' "

(LAUSD, supra, 228 Cal.App.4th at p. 241, fn. 13.) Contrary to inewsource's claim, even

records related to public business may be withheld under an applicable exemption; that is

the purpose of the exemptions. If a record is purely personal and unrelated to public




9      The Brown Act, for example, "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).)" (Versaci, supra, 127 Cal.App.4th at p. 821; see International Federation,
supra, 42 Cal.4th at pp. 333-334.) "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.' " (Versaci,
supra, 127 Cal.App.4th at p. 821.)
                                             19
business, it is not subject to the PRA at all. (See § 6252, subd. (e); see also San Gabriel

Tribune, supra, 143 Cal.App.3d at p. 774.)10

       Inewsource proposes, as an alternative, that the names of the participating

individuals be redacted from the Rady documents to mitigate any privacy concerns. (See

CBS, Inc. v. Block, supra, 42 Cal.3d at p. 653 ["The fact that parts of a requested

document fall within the terms of an exemption does not justify withholding the entire

document."].) We disagree. Given the specificity with which the participant reports and,

to some extent, the participant evaluation discuss the competencies, traits, and

personalities of the participating managers, there is a substantial risk that the participating

managers could be identified and linked to their individual ratings and reports. Redacting

the names of the individual managers would therefore have little effect on the privacy

rights implicated by these documents.



10      Inewsource also relies on an opinion of the Attorney General concerning the
disclosure of application and personnel files of nautical pilots. (53 Ops.Cal.Atty.Gen.
136 (1970).) In that opinion the Attorney General noted, as we do here, that portions of a
personnel file may be sufficiently confidential to warrant exemption under the PRA: "As
the information bears more remotely on the question of qualifications or performance,
and as it by its personal nature becomes more likely to be regarded as intrusive or
embarrassing by its disclosure, the probability of its confidential nature increases." (53
Ops.Cal.Atty.Gen, supra, at pp. 146-147.) The Attorney General therefore advised that
"section 6254[, subdivision ](c) preserves the confidentiality of only a limited portion of
the material found in a personnel file. For this reason, it is appropriate to segregate the
confidential matters from the remainder of such a file." (53 Ops.Cal.Atty.Gen., supra, at
pp. 147-148.) The Attorney General did not advise disclosing the entirety of any
personnel file, as inewsource implies. Moreover, any analogy between the personnel
files at issue in the Attorney General's opinion and the Rady documents is imperfect
because the pilots were not employees of the Board of Pilot Commissioners. (See id. at
p. 144.) Their personnel files therefore appear to have contained information that would
not be comparable to the Rady documents.
                                              20
       As to the talent management summary, however, the absence of personally

identifying information tips the balance in favor of disclosure. As we have explained, the

privacy interest implicated by this record is significantly attenuated. Although it appears

probable the participating employees were told that this record, too, would be kept

confidential, the promise of confidentiality is not determinative in weighing the public

and private interests. (See BRV, supra, 143 Cal.App.4th at pp. 748-749, 759; Versaci,

supra, 127 Cal.App.4th at p. 821; San Gabriel Tribune, supra, 143 Cal.App.3d at p. 774.)

The ratings contained in the talent management summary cannot be matched to any

individual participant. The ratings do provide significant information, however, that

bears on the competency of the District's participating senior managers across various

categories (including "the organization's key competencies"). The public interest

therefore remains strong. (See LAUSD, supra, 228 Cal.App.4th at p. 243; BRV, supra,

143 Cal.App.4th at p. 757.) Because disclosure of the talent management summary

would not "constitute an unwarranted invasion of personal privacy," we conclude it is not

exempt from disclosure under section 6254, subdivision (c).

                                            IV

       The District also contends the "catch-all" exemption in section 6255 of the PRA

applies to the Rady documents. Under that exemption, an agency may withhold a public

record from disclosure by showing "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).) "Records 'found to be nonexempt under

section 6254 . . . can still be withheld under section 6255.' " (LAUSD, supra, 228

                                            21
Cal.App.4th at p. 254.) However, because we have concluded that a portion of the Rady

documents, the participant reports and the participant evaluation, are exempt under

section 6254, subdivision (c), we need not consider whether they would additionally be

exempt under section 6255. (See ibid.) Our analysis under the "catch-all" exemption

will therefore be limited to the talent management summary.

       "The catch-all exemption 'contemplates a case-by-case balancing process, with the

burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on

the side of confidentiality.' [Citation.] Where the public interest in disclosure of the

records is not outweighed by the public interest in nondisclosure, courts will direct the

government to disclose the requested information. [Citation.] Conversely, when the

public interest in nondisclosure clearly outweighs the public interest in disclosure, refusal

to release records will be upheld." (LAUSD, supra, 228 Cal.App.4th at pp. 239-240.)

"Under section 6255, the court balances the public interest in disclosure against the

public interest in nondisclosure." (LAUSD, supra, 228 Cal.App.4th at p. 240.) We have

already considered the public interest in the disclosure of the talent management

summary in the previous part. We will therefore turn to the public interest in

nondisclosure.

       The District asserts that "releasing the Rady documents would be detrimental to

the functioning of [the District] and its ability to carry out its duties to the public."

Relying on LAUSD, the District claims disclosure would negatively affect management

employees at the District by generating "unhealthy comparisons among" the employees,

leading to "discord in the workplace." (See LAUSD, supra, 228 Cal.App.4th at pp. 250-

                                               22
251.) In LAUSD, however, the government had already released information that was at

least as detailed as the talent management summary, including anonymous ratings of each

teacher. (LAUSD, supra, 228 Cal.App.4th at p. 247.) The concerns articulated in

LAUSD related to the disclosure of the identities of the public employees at issue, which

is not at issue in the talent management summary. (See id. at p. 245.)

       The District's concerns may have some validity with respect to the participant

reports and the participant evaluations, in which the participants and their corresponding

ratings are identified. As to the talent management summary, however, we find the

District's concerns to be largely unfounded because no individual participants are

identified. While the talent management summary reflects how the 13 participants were

rated in each category, the ratings cannot be linked to any individual participant. In the

absence of any specific evidence to the contrary (and the District provides none), we

believe any "unhealthy comparisons" or "discord in the workplace" generated by the

disclosure of the talent management summary would be minimal. While some

subordinate employees may notice the ratings of their superiors as a group, we believe

the subordinates likely already understand their superiors' strengths and weaknesses in far

more detail than the talent management summary provides. And, while some participants

in the Program may experience embarrassment at the prospect of being included in a

group with a given set of scores, the public interest in avoiding such embarrassment is

also minimal.

       "Courts must be alert to contentions by government entities that exaggerate the

interest in nondisclosure, lest they be used as a pretext for keeping information secret for

                                             23
improper reasons, such as to avoid embarrassment over mistakes, incompetence, or

wrongdoing. After all, to some extent any request for disclosure of public records will

place a burden on government. Both the voters and their elected officials have

established the general policy that this burden is well worth bearing in order to keep

democracy vital. If the catchall provision of the [PRA] becomes a loophole used to

improperly keep public records from the people, the important purposes of the [PRA]

would be undermined." (LAUSD, supra, 228 Cal.App.4th at p. 250.)

       Balancing the strong public interest in disclosure of the talent management

summary against the minimal public interest in its nondisclosure, we conclude the

District has not shown the public interest in nondisclosure clearly outweighs the public

interest in disclosure. (See § 6255, subd. (a).) " 'Since there is a strong public interest in

disclosure, the balance must tip in favor of access' to the information." (Sacramento

County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440,

472.) The "catch-all" exemption under section 6255 does not apply to the talent

management summary.11




11     Our conclusion that the talent management summary must be disclosed under the
PRA reinforces our determination that the participant reports and participant evaluation
should not be disclosed. While the information contained in each is not exactly the same,
the bulk of the information that would allow the public to assess the competency of the
District's senior managers (at least according to the Program) is set forth in the talent
management summary. (See LAUSD, supra, 228 Cal.App.4th at p. 242 ["Where a
requester has an alternative, less intrusive, means of obtaining the information sought, the
public interest in disclosure is minimal."].)
                                              24
                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the superior court to vacate its

order denying inewsource's petition and to enter a new order granting inewsource's

petition in part as to the talent management summary, which is reflected on the second

page of the Rady documents as submitted to this court. Inewsource's request for attorney

fees is denied without prejudice to inewsource's ability to seek attorney fees, including

for this proceeding, in the superior court. In all other respects, inewsource's petition in

this court is denied. Inewsource's request for judicial notice is granted in

part and denied in part as set forth in this opinion. Inewsource is awarded its costs in this

proceeding.


                                                                        NARES, Acting P. J.

WE CONCUR:


McDONALD, J.


McINTYRE, J.




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