LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES TIMES COMMUNICATIONS LLC, Real Party in Interest.
No. B251693
Second Dist., Div. Eight
July 23, 2014
228 Cal. App. 4th 222
Altshuler Berzon, Jeffrey B. Demain, Jonathan Weissglass, Eric P. Brown; Holguin, Garfield, Martinez & Quiñonez and Jesús Quiñonez for Petitioner United Teachers Los Angeles.
Office of the General Counsel Los Angeles Unified School District, Alexander A. Molina; Littler Mendelson, Barrett K. Green and Maggy M. Athanasious for Petitioner Los Angeles Unified School District.
No appearance for Respondent.
Los Angeles Times Communications, Jeff Glasser; Davis Wright Tremaine, Kelli L. Sager and Rochelle L. Wilcox for Real Party in Interest.
KUSSMAN, J.*—
INTRODUCTION
When it comes to educating children, few things are more controversial than standardized tests. And few things generate more conflict than how, or even if, teachers should try to improve their students’ performance on such tests. But by law, school districts must establish standards of expected pupil achievement, and teachers are evaluated and assessed in regard to their students’ progress. Whatever the merits of standardized tests, they are part of the present educational environment in which students, teachers, and parents live.
The Los Angeles Unified School District (the District or LAUSD) has developed a statistical model designed to measure a teacher‘s effect on his or her students’ performance in the California Standards Tests (CST). This model yields a result—known as an Academic Growth over Time (AGT) score—which is derived by comparing students’ actual CST scores with the scores the students were predicted to achieve based on a host of sociodemographic and other factors. These AGT scores are calculated at various levels—by individual teacher, by grade, by school, and by subject matter. The District releases most of these scores to the public. Among other things, the District releases AGT scores for over 650 schools, as well as AGT scores for every grade level and subject matter. In addition, the District has released AGT scores for individual teachers—but with their names redacted.
This writ proceeding raises the question of whether the AGT scores of each teacher, identified by name,1 must be released under the California Public Records Act (CPRA;
We hold that the unredacted AGT scores are exempt from disclosure under the catchall exemption in
FACTUAL AND PROCEDURAL BACKGROUND
1. The District‘s AGT Metric
Under the Stull Act (
Through an official Web site, the District makes available to the public AGT scores for individual schools, as well as for every grade within those schools. The Web site also provides AGT scores for each school by subject matter. Thus, for example, one can go online and see that, in the 2011-2012 school year, third grade students at a certain elementary school received a 3.7 (on the five-point scale) in math, fourth grade students at that same school received a 3.4 in math, and fifth grade students received a 4.2 in math. One can also see scores at that school broken down by gender, race, English language learner status and other variables.
Starting in around 2009, before the District had developed the AGT metric, the Times began submitting CPRA requests to the District to obtain various scores relating to student and teacher performance. After some back-and-forth discussion, the District ultimately complied with the Times‘s requests and provided student test data, along with information that would enable the Times to connect student scores to their individual teachers. Beginning in August 2010, the Times published a series of articles concerning the effectiveness of District teachers in improving student performance on standardized tests. Based on the information obtained from the District, the newspaper developed its own value-added metric to assess teacher performance. In 2010, and again in 2011, the Times published its value-added scores for thousands of individual teachers, who were identified by name.
In April 2011, the Times made another CPRA request, seeking the AGT scores for the 2009-2010 school year, the only year for which AGT scores had been prepared at that time. The District denied the request, claiming the AGT database was still in preliminary draft form and was therefore exempt from disclosure under the CPRA‘s “preliminary drafts” exemption. (
In October 2011, the Times again made a CPRA request, this time seeking teacher AGT scores for the 2010-2011 school year, which were being distributed to teachers that month, as well as teacher AGT scores for the 2009-2010 school year. The District responded, claiming that (1) the 2009-2010 scores were exempt from disclosure under the preliminary drafts, personnel records, and catchall exemptions, and (2) the 2010-2011 scores were exempt under both the personnel records and catchall exemptions.5 The District said it
Finally, in August 2012, the Times submitted another CPRA request, seeking the 2011-2012 teacher AGT scores. The District denied the request, claiming disclosure was exempt under the personnel records and catchall exemptions. It again agreed to provide teacher AGT scores with names redacted.
3. The District-UTLA Agreement
In November 2012, the District and UTLA concluded an agreement regarding the use of AGT scores and other matters relating to the evaluation of teachers. The agreement provides that “[i]ndividual AGT scores (as distinguished from the school-level AGT results) are to be used solely to give perspective and to assist in reviewing the past CST results of the teacher, and shall neither form the basis for any performance objectives/strategies nor be used in the final evaluation.”6
In addition, the District-UTLA agreement contains the following provision: “Confidentiality of Individualized CST/AGT Test Results: CST/AGT scoring reports that are linked to names of individual employees shall be treated as a confidential personnel record, due in part to their use in the employee performance evaluation system. The District will defend that principle in court as the occasion arises.”7
4. The Times‘s Lawsuit
In October 2012, the Times initiated this litigation by petitioning the superior court for a writ of mandate under the CPRA, seeking the AGT scores of each teacher identified by name, and also the location codes indicating the schools to which each teacher was assigned. The District opposed the Times‘s
In support of its opposition to the Times‘s writ petition, the District provided a declaration from its superintendent, John Deasy, who indicated that he had nearly three decades of experience in education (including as superintendent of schools in Md., R.I., and Santa Monica-Malibu, Cal.) before becoming head of the District. Superintendent Deasy expressed concerns that releasing unredacted teacher AGT scores would (1) spur unhealthy comparisons among teachers and breed discord in the workplace, leading to resentment, jealousy, bitterness and anger, which would prove counterproductive and demoralizing to some teachers, (2) discourage recruitment of quality candidates and/or cause existing teachers to leave the District, (3) allow competing schools to steal away the District‘s teachers with high AGT scores, (4) disrupt a balanced assignment of the teaching staff—which is essential to the operations of the District—because parents would battle to ensure that their own children be assigned to the highest performing teachers, and away from the lower rated teachers, (5) undermine the authority of teachers with low AGT scores because parents and students alike would lose confidence in them, undercutting their ability to receive and accept guidance and perform their jobs, and (6) adversely affect the teacher disciplinary process because teachers subject to such proceedings could compare their AGT results with those of other teachers.
The Times objected to many of the statements in Superintendent Deasy‘s declaration. Most objections were overruled.8 At the hearing on the Times‘s petition and in its written ruling, the court indicated it had considered and given weight to at least some of the superintendent‘s concerns.9
In support of its separate opposition to the Times‘s petition, UTLA submitted a declaration from Dr. Jesse Rothstein, a labor economist who teaches at the University of California, Berkeley, and studies education policy, with a particular emphasis on value-added modeling. Among other
5. The Trial Court‘s Ruling
After hearing argument from all parties, the trial court issued a comprehensive 26-page decision. It concluded that AGT scores linked to each teacher‘s name were not exempt from disclosure under the CPRA and granted the Times‘s petition.
At the outset, the court agreed with the District and UTLA that the AGT scores were part of the teachers’ personnel or other similar files, which is a prerequisite to consideration under the privacy exemption. (
However, the court did not believe these concerns were sufficient to tip the balance in favor of nondisclosure. It found that the teachers had no reasonable expectation of privacy with respect to their AGT scores. And it concluded that, even assuming the teachers had a reasonable expectation of privacy in their scores, their privacy interests do not “clearly outweigh” the public interest in disclosure.10
The court opined the public has a strong interest in disclosure of teacher AGT scores because the scores are compiled at taxpayer expense; they are intended to provide an objective measure of student performance and teacher success; the public has a general interest in all educational issues; and standardized testing and objective evaluation of teacher performance are particularly topical for educators, parents, students, and the general public.
With respect to the concerns expressed by Dr. Rothstein about reliability and public policy, as well as Superintendent Deasy‘s opinions regarding the detrimental effect on the District‘s ability to do its job, the court stated, “I personally don‘t think disclosure is good public policy. My personal beliefs are not relevant.” It went on to say, “[t]he simple answer is that the court does not set public policy, good or bad” and noted that the Legislature could amend the Education Code to preclude disclosure of teacher AGT scores.
In the trial court, the focus was primarily on the privacy exemption issue, but the catchall exemption was also considered and discussed. The court ruled that the District and UTLA had not met their burden of showing they were entitled to an exemption under either code section. In granting the Times‘s writ petition, the court ordered the District to release “[t]he teachers’ names with corresponding pseudo-identification numbers and location codes for the teachers’ school assignments, that connect all Los Angeles Unified School District teachers with their [AGT] scores for the academic years 2009 [through] 2012.”
6. The Writ Petitions by UTLA and the District
The District and UTLA petitioned this court for relief, each of them filing separate writ petitions challenging the trial court‘s judgment. After this court‘s initial summary denial of the petitions, the Supreme Court granted the separate petitions for review by the District and UTLA and transferred the matters back to this court with directions to issue an order to show cause. We consolidated the two proceedings, issued an order to show cause, received briefing from the parties, and heard oral argument.
Soon after oral argument in this case, our Supreme Court issued its opinion in Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59 (City of Long Beach). Following a request by the Times, we invited and received supplemental letter briefs from all parties discussing the significance of the City of Long Beach opinion on the issues raised in the instant case.
STANDARD OF REVIEW
Pursuant to
DISCUSSION
I. Constitutional Provisions and the Statutory Scheme
A. Overview
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.’ ” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328–329 (International Federation).)
In 1968, the Legislature enacted the CPRA to clarify the scope of the public‘s right to inspect records. (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 825 (County of Los Angeles).) The CPRA ” ‘replaced a hodgepodge of statutes and court decisions relating to disclosure of public records. [Citations.]’ ” (Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759, 765.) The statutory scheme ” ‘was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.’ [Citation.]” (County of Santa Clara, supra, 170 Cal.App.4th at pp. 1319-1320.) 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.” (
In 2004, California voters endorsed the policy set forth in the CPRA by approving Proposition 59, which amended the state Constitution to explicitly recognize the “right of access to information concerning the conduct of the people‘s business” and to provide that “the writings of public officials and agencies shall be open to public scrutiny.” (
B. Exemptions—Competing Private and Public Interests
Fundamental rights, however, can sometimes conflict. The right of access to public records under the CPRA is not absolute. (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282.) The California Constitution contains an explicit right of privacy that operates against private and governmental entities. (
The CPRA enumerates a ” ‘number of exemptions that permit government agencies to refuse to disclose certain public records.’ [Citation.]” (County of Santa Clara, supra, 170 Cal.App.4th at p. 1320.) Specific exemptions apply where the public interest in disclosure may be outweighed by various public or private interests. (
C. Specific Exemptions Applicable to the Instant Case
Here, we are concerned with two possible exemptions. The first is the privacy exemption. Pursuant to
The question remains, however, whether disclosure of an AGT score tied to a teacher‘s name invades his or her right to privacy; and, if so, whether such invasion is unwarranted under the circumstances. In reaching a conclusion on this issue, a court must balance the public‘s interest in disclosure against the privacy right that the exemption is designed to protect. (U.S. Dept. of Justice v. Reporters Committee (1989) 489 U.S. 749, 776 (Reporters Committee).) Determining the proper balance involves two fundamental, yet competing, interests: (1) prevention of secrecy in government and (2) protection of individual privacy. (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1017 (City of San Jose).)
The second exemption is the catchall provision set forth in
Exemptions under either section require the court to engage in a balancing test. Under
II. As Used in the CPRA, What Does “Public Interest” Mean?
A. The Nature of a Public Interest
The CPRA does not define “public interest“—understandably so, as the term itself is not only broad but is based upon innumerable variables, and is subject to change over time. Yet, in cases such as this, courts are called upon to determine what “public interest” means, and how to apply it to the circumstances.12 We start with the safe assumption that a public interest is not the same as a private interest. Otherwise, the adjectives “public” and “private” would be unnecessary. It follows, therefore, that just because a member of the public has an interest in something does not necessarily make that interest one of public concern.
Courts have struggled with a definition, in large part because the analysis is so fact specific. Some have said that defining what issues raise a public concern ” ’ “amounts to little more than a message to judges and attorneys that no standards are necessary because they will, or should, know a public concern when they see it.” ’ [Citations.] ” (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 929.) Other courts have doubted whether an
As noted, in considering the meaning of public interest under the CPRA, we may draw on the legislative history and judicial construction of the FOIA. (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 772; Wilson, supra, 51 Cal.App.4th at p. 1141.) The FOIA was designed to ensure the government‘s activities are open to the “sharp eye of public scrutiny.” (Reporters Committee, supra, 489 U.S. at p. 774.) The basic goal is to open agency action to the light of public review, with its core purpose designed to ” ‘contribut[e] significantly to public understanding of the operations or activities of the government.’ ” (Id. at p. 775.) It follows, then, that “the only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency‘s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’ [Citation.]” (Dept. of Defense, supra, 510 U.S. at p. 497.)
California courts have followed the same approach. They have recognized the inherent tension between the public‘s right to know and society‘s interest in protecting private citizens (including public servants) from unwarranted invasions of privacy. (Versaci, supra, 127 Cal.App.4th at p. 822.) One way to resolve this tension is to try to 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 (2003) 112 Cal.App.4th 1500, 1519, disapproved on another point in International Federation, supra, 42 Cal.4th at p. 335.) When it comes to disclosing a person‘s identity under CPRA, the public interest which must be weighed is the interest in whether such disclosure “would contribute significantly to public understanding of government activities” and serve the legislative purpose of ” ’ “shed[ding] light on an agency‘s performance of its statutory duties.” ’ ” (City of San Jose, supra, 74 Cal.App.4th at pp. 1018-1019.) Where disclosure of names and addresses would not serve this purpose, denial of the request for disclosure has been upheld.13 (City of San Jose, at p. 1019.)
When the court does find a public interest, it must then determine its weight. “The existence and weight of the public interest in disclosure are conclusions derived from the nature of the information requested.” (Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1012-1013 [131 Cal.Rptr.2d 553].) While, as a threshold matter, the records sought 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.’ ” (Connell v. Superior Court (1997) 56 Cal.App.4th 601, 616 [65 Cal.Rptr.2d 738] (Connell).) Again, federal courts are in agreement. (Hopkins v. U.S. Dept. of Housing & Urban Development (2d Cir. 1991) 929 F.2d 81, 88 [“disclosure of information affecting privacy interests is permissible only if the information reveals something directly about the character of a government agency or official“].)
The motive of the particular requester in seeking public records is irrelevant (
Moreover, for the public interest to carry weight, it must be more than “hypothetical” or “minimal.” (County of Santa Clara, supra, 170 Cal.App.4th at pp. 1323-1324.) Where a requester has an alternative, less intrusive, means of obtaining the information sought, the public interest in disclosure is minimal. (County of Santa Clara, supra, at p. 1324; City of San Jose, supra, 74 Cal.App.4th at p. 1020.)
With the above principles in mind, we look to whether the records sought by the Times are exempt from disclosure.
We begin with the catchall exemption in
The trial court found a strong public interest in disclosure of “teacher AGT scores” — not only because they are compiled at taxpayer expense but because they reflect the performance of students and are intended to provide an objective measure of student performance and teacher success. Regardless of the debate over their accuracy and reliability, AGT scores are designed and intended to assess teacher effectiveness. As such, they are an attempt to “shed light” on how the District is doing its job.14 There can be little doubt that a public interest exists in “teacher AGT scores” as a whole. The question is whether the scores linked to individual teachers by name shed light on the District‘s performance beyond that shed by the scores without the names, and, if so, whether that further light is minimal, hypothetical, or outshined by other interests.
To find answers under
A. The Public Interest in Nondisclosure
1. The Deasy Declaration
As noted above, the trial court was unsure what to make of the declaration of LAUSD‘s Superintendent Deasy, believing that many of his concerns were
Superintendent Deasy identified various harms he believed would occur if teachers’ names tied to their AGT scores were disclosed. As noted above, the trial court considered them, but was unsure if they were “non-speculative.” But where a party is trying to show a public interest in nondisclosure, by its very nature it is trying to prove how people will respond to something that has not occurred; it is trying to show that if previously secret records are made public, something bad will happen. It is no wonder requesters have often argued that the parade of horribles predicted by those resisting disclosure is speculative. (Block, supra, 42 Cal.3d at p. 652 [claim that revealing applications for concealed weapon permits would increase licensees’ vulnerability “conjectural at best“]; California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 835 [108 Cal.Rptr.2d 870] [evidence that disclosing the names of donors who obtained licenses for luxury suites at campus arena would have a chilling effect on future donations was speculative and inadmissible]; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1586 [268 Cal.Rptr. 21] [the “record contains no evidence” supporting agency‘s claim that names and addresses of customers who exceeded their water allocation would expose them to verbal or physical harassment].) This argument appears to have carried the day in the trial court, which concluded that virtually all of the District‘s arguments regarding the catchall exemption were “supported only by speculation, not evidence.”
But experts often opine on what they predict will be the consequences of proposed actions, and expert opinions can be admissible in this setting. In Humane Society, supra, 214 Cal.App.4th at page 1239, an animal advocacy group petitioned for disclosure of records concerning ongoing research relating to a proposed voter initiative. The Regents of the University of California opposed disclosure under
Here, there can be no doubt that Superintendent Deasy qualifies as an expert in his field, with extensive experience in teaching and administration, dealing with schools and teachers. Reasonable minds may differ on the weight to be given his opinions, and some of his predictions may be more compelling than others. But they clearly demonstrate a legitimate concern for what may occur if the names of teachers are released along with their AGT scores. It seems logical that the unredacted scores could spur unhealthy comparisons among teachers and breed discord in the workplace, discourage recruitment of quality candidates and/or cause existing teachers to leave the District, disrupt the balance of classroom assignments (see below), and adversely affect the disciplinary process. Clearly, the public has an interest in avoiding these consequences in its schools.
2. Common Sense and Human Experience
In the context of CPRA litigation, courts may be called upon to make judgments with a paucity of “hard” evidence. In doing so, they may be required to rely on commonly understood general human behavior. (Humane Society, supra, 214 Cal.App.4th at p. 1259.) Courts have not necessarily required conclusive evidence that the feared consequences of public disclosure would actually occur. (City of San Jose, supra, 74 Cal.App.4th at p. 1024.) Instead, they have looked to human experience in order to form their conclusions on the likely effect of disclosure. (Ibid.)
For example, some of the issues raised by Superintendent Deasy — like recruitment or discipline issues — may require expert testimony because they are outside the common knowledge of noneducators. But when it comes to discord in the workplace and disrupted teaching assignments, one could reasonably corroborate Superintendent Deasy‘s opinions by resorting to common human experience.15
Of particular concern is the issue of classroom assignments. Superintendent Deasy stated in his declaration that it is important to maintain a balance of
Factfinders do not always need a declaration from an expert to reach a valid conclusion based upon common sense and human nature. As the court said in California First Amendment Coalition, a case involving
For the reasons set forth above, the District and UTLA have demonstrated a substantial public interest in nondisclosure of the names of the District‘s teachers tied to their individual AGT scores. The next question, then, is whether there is a countervailing public interest in their disclosure.
B. The Public Interest in Disclosure
As discussed above, to determine if there is a public interest in disclosure, a court must look to the nature of the information sought and whether release of that information would contribute to the public‘s understanding of government; whether it would shed light on what “the government has been up to.” Thus, we look to whether the release of the AGT score of each teacher, identified by name, would contribute significantly to a public understanding of the District‘s activities or illuminate how it functions. (See City of San Jose, supra, 74 Cal.App.4th at p. 1018.) After all, if there is little or no public interest in disclosure, the balance here will easily tilt in favor of nondisclosure.
Assuming (without deciding) that there is some degree of validity to the AGT scores, knowing the AGT scores of the teachers in the District would shed some light on the effectiveness of the teacher population as a whole, which in turn reflects on an important part of the District‘s job — recruiting and retaining good teachers. In addition, knowing the scores of the teachers in a given school may shed light on how the District has distributed teachers, school by school. Knowing the scores of the math teachers, or the third grade teachers, could presumably illuminate how that group of teachers is doing, and how they compare to similar groups. These are all things that directly contribute to an understanding of how the District is doing its job. But the District has already released this information, including the AGT scores of each teacher — with names redacted.
What does attaching a name to each teacher‘s score illuminate? Does knowing the teacher‘s name “contribute significantly to public understanding of government activities“? In its brief, the Times says that knowing the name of the teacher and his or her AGT score “will help the public gain insight into the effectiveness of individual teachers but, more importantly, it will help the public understand and evaluate LAUSD‘s performance and its significant investment of public funds into the development of the AGT system.” No doubt the public‘s understanding of LAUSD‘s performance and its use of public funds is a public interest. But the Times fails to explain how knowing the AGT score of each teacher by name furthers this understanding.
The Times also argues that knowing a teacher‘s score and his or her name “can help parents understand whether their child‘s performance reflects low performance by the child, an inadequacy in the child‘s instruction, a systemic problem in the school or District, or something else entirely.” (Italics added.) Here, the Times gets closer to the point. Surely, parents will have an interest in the effectiveness of the teacher to whom their child is, or may be, assigned. But it does not necessarily follow that the interest is a public one.
The trial court opined that knowledge of the AGT score of teachers identified by name is “but one tool in the parent toolbox. . . .” The Times presented evidence that there was even a direct correlation between teachers with high value-added scores and their students’ ultimate earning capacities when they reach adulthood. If true, this suggests that a teacher‘s AGT score may be of great importance to a child in his or her class. But this evidence proves too much. It tends to support both Superintendent Deasy‘s opinion and what one would believe through common sense: Parents will naturally have a strong desire to get their children into classes with the highest scoring
This court does not minimize the importance of parents being involved in their children‘s education. But the interest in having one‘s child get the best teacher is, at bottom, a private one.
Of course, the presence of a private interest does not preclude a coexistent public interest. Indeed, in applying
2. A Minimal or Hypothetical Public Interest Will Not Support Disclosure
Even where a public interest exists, if it is minimal or hypothetical, disclosure will not be compelled. (City of San Jose, supra, 74 Cal.App.4th at p. 1020; see County of Santa Clara, supra, 170 Cal.App.4th at pp. 1324-1325.) As noted above, the public interest is minimal where the requester “has alternative, less intrusive means of obtaining the information sought.” (City of San Jose, supra, 74 Cal.App.4th at p. 1020; see County of Santa Clara, supra, 170 Cal.App.4th at p. 1324.) The public interest in the identity of public employees is minimal if it does not ” ‘appreciably further’ the public‘s right to monitor the agency‘s action.” (Forest Service, supra, 524 F.3d at pp. 1025-1027.)
In its brief to this court, the Times did not clearly articulate how disclosing the unredacted AGT scores would provide further insight into the District‘s performance, beyond that learned from the information already disclosed. When questioned on this point at oral argument, its attorney theorized that if the teachers’ names were disclosed, parents would be able to “dig deeper” into the AGT score to “understand what the teachers are doing, and whether or not parents can do anything” about differences in the classrooms. She went on to assert that “if parents could distinguish between teachers, if they can understand what teachers are doing,” they could work with the board to advocate for more effective approaches to raising student test scores. And she suggested that parents could sit in the classrooms and “observe, see what the teacher is doing that is effective; see what the teacher is doing that might not be effective.”19 In other words, if parents knew a particular teacher‘s AGT score, they could “see what is working and what is not working” in terms of raising the students’ scores on standardized tests.
These claims are, at best, hypothetical. The idea of well-meaning parents, with varying degrees of experience and expertise, intervening in how classrooms are run and how subjects are taught, based on how their child‘s teacher scored on a complex, controversial statistical analysis, and then reaching their own conclusions to advocate for changes in teaching techniques, hoping to raise student test scores on standardized tests, goes beyond speculation. The Times presents no basis for believing that such interventions by parents would be helpful, productive, or even feasible.20
Based upon the record before us, if there is any public interest in disclosing the names of individual teachers’ AGT scores, it is minimal or hypothetical.
We turn now to the third prong of the test — striking the balance.21 For this part of the analysis we assume, without deciding, that there is at least some degree of public interest in disclosure of teachers’ names linked to their AGT scores. Next, we decide if that interest is clearly outweighed by the public interest in nondisclosure.22 We remain mindful that openness in the activities of government is fundamental to the exercise of our constitutional rights and our ability to function as a democracy. 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 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 CPRA becomes a loophole used to improperly keep public records from the people, the important purposes of the CPRA would be undermined.
In this case, the District has presented compelling arguments that the public interest is served by nondisclosure of the unredacted AGT scores because releasing them would be detrimental to the functioning of the District and would interfere with its ability to carry out its statutory duties. The Times, of course, does not dispute that there is a public interest in the District running well. It simply claims that the District has failed to meet its burden of showing that the balance of interests clearly weighs in favor of nondisclosure. But the record proves otherwise.
The trial court received evidence by way of the Deasy declaration indicating that disclosure of AGT scores linked to teachers’ names would have a detrimental effect on recruitment and retention of teachers; disrupt a balanced assignment of the teaching staff essential to the operations of the District as parents battle for teachers with high AGT scores for their children; and generate unhealthy comparisons among teachers and discord in the workplace. The trial court found considerable evidence presented by the District and UTLA that teacher embarrassment, jealousy, and unhealthy comparisons
The Times has failed to contradict this evidence. And it has failed to demonstrate that if a public interest in the teachers’ names tied to their AGT scores exists, it is anything more than minimal or hypothetical. Moreover, it has not shown that the information already disclosed by the LAUSD — e.g., AGT scores grouped by school, grade, subject, sociodemographics, and teachers (without their names) — is insufficient to satisfy the valid public interest in the District‘s general performance. After all, ” ‘the public interest in efficient and lawful personnel management by government agencies is better served by disclosure of general agency performance rather than by specific revelation of individual problems. . . . Practically no public interest is advanced by disclosure of the latter.’ ” (Braun, supra, 154 Cal.App.3d at p. 343, quoting Campbell v. U.S. Civil Service Com. (1976) 539 F.2d 58, 62.)
In arguing that disclosure is warranted under the CPRA, the Times relies heavily on Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278 [64 Cal.Rptr.3d 661, 165 P.3d 462] (Peace Officer Standards) and International Federation, supra, 42 Cal.4th 319. However, those cases are readily distinguishable and actually highlight the reasons for nondisclosure in this case. In Peace Officer Standards, the Times sought the names, employing departments, and dates of employment of peace officer personnel. It did not seek information that had any bearing on the performance or effectiveness of any given peace officer in doing his or her job or any other personal or sensitive information.23 The Supreme Court ordered disclosure, in part because the government agency had not shown how disclosure of this “innocuous information” could ” ‘create mischief.’ ” (Peace Officer Standards, at p. 302.) That is a far cry from the situation here, where the AGT scores are intended to measure teacher effectiveness, are anything but innocuous, and would interfere with the functioning of the District in a number of different ways.
Likewise, in International Federation a newspaper sought disclosure of the names and salaries of public employees. The Supreme Court again ordered disclosure, noting that any expectation of privacy by public employees in the amount of their salaries was not a reasonable one. After all, it had long been the case that ” ‘the name of every public officer and employee, as well as the amount of his salary, is a matter of public record.’ ” (International Federation, supra, 42 Cal.4th at p. 331.) Unlike the instant case, there was no effort to discover information about an employee‘s effectiveness in performing his or
Soon after oral argument in this case, our Supreme Court issued its opinion in City of Long Beach, supra, 59 Cal.4th 59. In that case, the court ordered the names of individual police officers who took part in certain shootings while on duty to be disclosed in response to a CPRA request. But the facts and the interests involved in City of Long Beach are very different from those before us here.
The CPRA request in City of Long Beach sought information about specific incidents where police officers discharged firearms while on duty. These events involve possible serious injury and/or death, and inevitably raise questions regarding the proper use of police power. The city and the police union opposed disclosure of the officers’ names, relying largely on statutes dealing with the confidentiality protections afforded peace officers under
City of Long Beach also addressed the balancing test set forth in
Moreover, disclosure of the name of an officer involved in a shooting does not necessarily bear on the officer‘s overall effectiveness in his or her job.26 After all, it is one thing to ask what an officer did on a particular occasion; it
On the disclosure side of the scale, the public has a clear interest in learning about officer-involved shootings in order to help it understand and investigate the facts of a specific incident involving the discharge of a firearm, and possible death or serious injury. Depending on the circumstances, such an incident could result in civil litigation or even criminal prosecution. It would be virtually impossible to understand the events surrounding such an incident without knowing who did what, and why. Moreover, learning the details of the incident could shed light on overall department policies and procedures involving the use of deadly force. 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. As discussed above, disclosing the names of teachers tied to their AGT scores — when redacted scores and related information have already been released — contributes little, if anything, to furthering the public interest in how the District is carrying out its statutory duties.27
We employ the same
IV. Are the Unredacted AGT Scores Exempt from Disclosure Under Section 6254, Subdivision (c)?
In the trial court, there was evidence presented that disclosure of the unredacted AGT scores would have a detrimental effect, both on the District
The trial judge found that the privacy exemption in
Since the catchall section allows the unredacted AGT scores to be withheld, we need not — and do not — address or decide whether disclosure of these scores would constitute an unwarranted invasion of teacher privacy making them exempt under
V. The “Location Codes”
As discussed above, prior to filing its petition for writ of mandate in the superior court, the Times also attempted to obtain the location codes relating to the specific schools where individual teachers are assigned. Presumably, this would allow the Times to connect a teacher‘s AGT scores with his or her location, even if the names are redacted. It appears from the record that at some point the District agreed to provide this type of information. However, when the Times‘s petition was filed, it still contained a request that the location codes be disclosed. The trial court‘s writ of mandate states that, in addition to releasing all teachers’ names with corresponding identification connecting them with their AGT scores, the District should release the “location codes for the teachers’ school assignments.”28
At oral argument before this court, it was clear that the parties had not resolved the location code issue. The nature and extent of their remaining disagreement was uncertain as counsel for each side could not agree on the impact or ramifications of location code disclosure. Now that this court has
Unlike the teachers’ names, the location codes appear to stand on a different footing. It is conceivable that these codes could provide information that may be in the public interest (e.g., by shedding light on how the LAUSD distributes high- and low-scoring teachers within the district and/or within a given school campus), without creating a significant risk of workplace discord, or parental jockeying for the best teachers, while at the same time being less intrusive or embarrassing to individual teachers. It may be that the location codes represent an “alternative, less intrusive means of obtaining the information sought.” (City of San Jose, supra, 74 Cal.App.4th at p. 1020.) But these issues were not addressed in the trial court, and on the record before us it is impossible to assess them. Without that assessment, we cannot determine whether application of the balancing tests in
The disclosure of location codes without teacher names could raise factual questions and legal arguments that have not been fully explored, and may reveal public interest and/or privacy considerations which the trial court previously had no opportunity to separately consider. We will therefore remand the matter to the trial court in order for it to consider the propriety of disclosing the location codes, consistent with views expressed herein.
VI. Summary
Openness in government is essential to the functioning of a democracy since ” ‘[i]mplicit in the democratic process is the notion that government should be accountable for its actions.’ ” (International Federation, supra, 42 Cal.4th at p. 328.) Our Constitution and our statutes expressly establish the public‘s “right of access to information concerning the conduct of the people‘s business” (
AGT scores represent a new and evolving statistical model based upon standardized tests which themselves are the subject of substantial
However, the case is remanded to the trial court to determine whether the location codes for each unidentified teacher should be disclosed.
DISPOSITION
The petitions of the LAUSD and the UTLA are granted in part. The matter is remanded to the trial court, which is directed to vacate the judgment entered on August 3, 2013, and to thereafter conduct further proceedings consistent with the views expressed herein before entering a new judgment which (1) denies the Times‘s petition for a writ of mandate to the extent it seeks release of teachers’ names that connect Los Angeles School District teachers to their AGT scores for the years 2009 through 2012, and (2) resolves the issue of disclosure of the location codes.
The parties are to bear their own costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1).)
Bigelow, P. J., and Flier, J., concurred.
The petition of real party in interest for review by the Supreme Court was denied November 12, 2014, S220908. Baxter, J., was of the opinion that the petition should be granted.
Notes
“[The Court]: What about unhealthy competition, discord among teachers —
“[Times Attorney]: But they have offered no evidence of that.
“[The Court]: We have concerns, and we have — I mean, I tend to think that the human nature supports humiliation. Some people will be humiliated.
“[Times Attorney]: Some people will be humiliated —”