“While, as a threshold matter, the records sought must pertain to the conduct of the people’s business, the weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated…”
How later courts described this case
- “While, as a threshold matter, the records sought must pertain to the conduct of the people’s business, the weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated…”
- “The motive of the particular requester in seeking public records is irrelevant. . . . Moreover, the purpose for which the requested records are to be used is likewise irrelevant.”
Written by the judges who cited it.
The opinion
Filed 7/23/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LOS ANGELES UNIFIED SCHOOL B251693
DISTRICT et al.,
(Los Angeles County
Petitioners, Super. Ct. No. BS139828)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES TIMES
COMMUNICATIONS LLC,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. James C. Chalfant, Judge. Petitions
granted in part and remanded.
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 LLC, Jeff Glasser; Davis Wright Tremaine,
Kelli L. Sager and Rochelle L. Wilcox for Real Party in Interest.
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 regards 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; Gov. Code, § 6250 et seq.).2 In response to a petition for writ of mandate
brought by the Los Angeles Times (Times), the trial court ruled the District is required to
produce these unredacted AGT scores, as well as the location codes which identify the
school to which each teacher is assigned. The District and United Teachers Los Angeles
1 As used in this opinion, the term “by name” includes a teacher’s proper name or
any other identifying information. The term “unredacted AGT score” refers to a score
that is linked to an individual teacher by name.
2 Undesignated statutory references are to the Government Code.
2
(UTLA) have each filed writ petitions in this court, challenging the trial court’s ruling.
They claim the court erred, arguing that the unredacted AGT scores are exempt from
disclosure under two sections of the CPRA—the “privacy” exemption in section 6254,
subdivision (c) and the “catch-all” exemption in section 6255.
We hold that the unredacted AGT scores are exempt from disclosure under the
catch-all exemption in section 6255 because the public interest served by not disclosing
the teachers’ names clearly outweighs the public interest served by their disclosure.
Accordingly, we grant the separate petitions for writ of mandate filed by the District and
UTLA to the extent they challenge the trial court’s ruling requiring disclosure by name or
identifying characteristics of each teacher with his or her AGT score. However, we
remand to the trial court for further proceedings regarding disclosure of the location
codes.
FACTUAL AND PROCEDURAL BACKGROUND
1. The District’s AGT Metric
Under the Stull Act (Ed. Code, § 44660 et seq.), school districts are required to
establish standards of expected student achievement in each area of study, and to evaluate
teacher performance as it relates to the progress of students toward reaching those
standards. (See §§ 44662 & 44664 [requiring school districts to regularly evaluate and
assess teacher performance and to meet with teachers who receive an unsatisfactory
rating].) Working with a research center at the University of Wisconsin-Madison, and
after obtaining input from various other experts and interested parties, the District has
developed the AGT metric in an attempt to measure the effect of its teachers on student
standardized test (i.e., CST) performance. The AGT scores are based on a “value-added”
methodology and are derived by comparing students’ predicted CST scores with their
actual scores. The predicted score is based on students’ past performance on the CST, as
well as on a host of sociodemographic and other factors, such as gender, race, English
language learner status, and special education status. An AGT score is assigned using a
3
five-point scale reflecting student performance: (1) far below predicted, (2) below
predicted, (3) within the predicted range, (4) above predicted, and (5) far above predicted.
Through an official website, the District makes available to the public AGT scores
for individual schools, as well as for every grade within those schools. The website 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.
2. The Times’ CPRA Requests
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’ 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
4
drafts” exemption. (§ 6254, subd. (a).)3 The District noted that teacher-identifying AGT
data for the 2011-2012 school year would be part of the teacher evaluation process in the
future, at which time it would be exempt under the CPRA’s personnel records exemption.
(§ 6254, subd. (c).) Although the District denied the CPRA request, it provided some
AGT data. However, it was limited to aggregate teacher scores on a school-wide basis,
and individual—but anonymous—scores for teachers.4
In October 2011, the Times again made a CPRA request, this time seeking teacher
AGT scores for the 2010-2011 school year that 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 catch-all exemptions, and (2) the 2010-2011
scores were exempt under both the personnel records and catch-all exemptions.5 The
District said it would be willing to provide teacher AGT scores for the 2010-2011 school
year, but only after redacting the names of the teachers. While the additional redacted
material allows one to ascertain the AGT score of “Teacher A,” it does not reveal the
classroom or the school in which Teacher A works. Thus, it does not allow one to
directly compare his or her score with that of “Teacher B” in a different classroom in the
same (or different) school.
3 The CPRA’s “preliminary drafts” exemption is not at issue in this writ proceeding.
4 These redacted teacher scores did not include the location codes linking the
unnamed teachers to the schools to which they were assigned. At some point in this
process, the District expressed a willingness to provide the Times with these codes.
However, for reasons that are not clear in the record, this never occurred.
5 Under the personnel records exemption, public records that would otherwise be
subject to disclosure under the CPRA are exempt from disclosure if they are “[p]ersonnel,
medical, or similar files, the disclosure of which would constitute an unwarranted
invasion of personal privacy.” (§ 6254, subd. (c).) Under the catch-all exemption, a
government agency may withhold disclosure of public records if it can show 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.)
5
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 catch-all 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’ 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’ petition on the grounds that the
6 Although the District-UTLA agreement raises questions about the extent to which
teacher AGT scores can be used, the scores clearly play some role in the teacher
evaluation process.
7 Public employment contracts themselves are not subject to the exemption
provisions of sections 6254 or 6255. (§ 6254.8.) And by itself, the “promise of secrecy
cannot always shield a public record from disclosure.” (Versaci v. Superior Court (2005)
127 Cal.App.4th 805, 821 (Versaci).)
6
information was exempt from disclosure under sections 6254 and 6255. In January 2013,
the trial court granted UTLA’s motion for leave to intervene. UTLA aligned itself with
the District and relied on the same two CPRA exemptions.
In support of its opposition to the Times’ 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 Maryland,
Rhode Island, and Santa Monica-Malibu, California) 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, and proving
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’ petition and
in its written ruling, the court indicated it had considered and given weight to at least
8 The trial court sustained objections only to the statements opining that release of
unredacted scores would (a) lead to resentment, jealousy, bitterness and anger, and prove
counterproductive and demoralizing to some teachers, (b) undermine the authority of
teachers with low AGT scores, undercutting their ability to receive and accept guidance
and perform their jobs, and (c) allow competing schools to steal away the District’s
7
some of the superintendent’s concerns.9
In support of its separate opposition to the Times’ 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 things, Dr. Rothstein explained that value-added models
are highly unstable. He observed that value-based accountability schemes for teachers
were too new to have produced much evidence regarding their effect. Dr. Rothstein also
stated that “[t]here has been basically no research on the consequences of releasing VA
[value-added] scores publicly,” which he claimed was due in part to the fact that “few if
any experts in the area see this as a good policy.”
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’ 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 file, which is a prerequisite to
consideration under the privacy exemption. (§ 6254, subd. (c).) It then noted that the
evidence showed “a real concern of embarrassment and jealousy from disclosure of the
[AGT] scores.” And it acknowledged that any stigma attached to a low score could be
heightened because the District’s AGT metric had the imprimatur of the LAUSD and
would carry substantial weight with the public and the parents. The court concluded
“[t]he District and UTLA present considerable evidence of teacher embarrassment,
teachers with high AGT scores. Objections to the remainder of Superintendent Deasy’s
declaration were overruled.
9 How much weight was given to Superintendent Deasy’s declaration is unclear. As
the court candidly remarked, “You can see from the tentative that I didn’t really know
how to handle Mr. Deasy’s declaration so I referred to it as his concerns. Whether they
qualify as non-speculative, I wasn’t sure, frankly.”
8
jealousy, and unhealthy comparisons which may result from disclosure.” It described
these as “serious harms.”
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. The court concluded “there should be an array of information
available to a parent and the public concerning student performance . . .” and “teacher
scores are but one tool in the parent toolbox . . . .”
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
catch-all 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
10 The statutory language in section 6254, subdivision (c) uses the term “unwarranted
invasion of personal privacy.” The term “clearly outweighs” is used in section 6255 (the
catch-all provision). Nevertheless, each process requires consideration of almost exactly
the same elements. (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 345 (Braun).)
9
either code section. In granting the Times’ 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 section 6259, subdivision (c), a trial court order under the CPRA,
either directing disclosure of records by a public official or supporting a decision by a
public official refusing disclosure, is immediately reviewable by a writ petition to the
appellate court. (CBS Broadcasting Inc. v. Superior Court (2001) 91 Cal.App.4th 892,
905-906 .) We review the trial court’s ruling de novo, although factual findings made by
the trial court will be upheld if based upon substantial evidence. (Michaelis, Montanari
& Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1072 (Michaelis).) Interpretation
of the CPRA and its application to undisputed facts present questions of law subject to de
novo appellate review. (CBS Broadcasting, supra, at p. 906.) And when it comes to
10
balancing various interests under the CPRA, while we accept the trial court’s express and
implied factual determinations if supported by the record, “we undertake the weighing
process anew.” (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301,
1323 (County of Santa Clara).)
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
records. 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 District 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 the state.” (§ 6250.)
The general policy favors disclosure, and all public records are subject to disclosure
unless the CPRA provides otherwise. (County of Santa Clara, supra, at p. 1320.)
The CPRA was modeled after the federal Freedom of Information Act (FOIA; 5
U.S.C § 552 et seq.) (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338
11
(Times Mirror).) FOIA’s “core purpose” is to contribute significantly to public
understanding of government activities. (Department of Defense v. FLRA (1994) 510
U.S. 487, 495 (Dept. of Defense).) Accordingly, federal “legislative history and judicial
construction of the FOIA . . . ‘serve to illuminate the interpretation of its California
counterpart.’ [Citations.]” (Times Mirror, supra, at p. 1338.)
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.”
(Cal. Const., art. I, § 3, subd. (b)(1).)
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. (Art. I, § 1; Gilbert v.
City of San Jose (2003) 114 Cal.App.4th 606, 613.) In enacting the CPRA, the
Legislature was “mindful of the right of individuals to privacy.” (Gov. Code, § 6250.)
By the same token, constitutional privacy interests are not absolute, either. They must be
balanced against other important interests. (Gilbert, supra, at p. 613.)
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. (§ 6254.)
In addition to these specific exemptions, the Legislature added a “catch-all” provision
which allows a government agency to withhold records if it can demonstrate that, on the
facts of a particular case, the public interest in nondisclosure outweighs the public interest
in disclosure. (§ 6255, subd. (a); County of Santa Clara, supra, at pp. 1320-1321.) In
general, however, all public records are subject to disclosure unless the Legislature has
12
expressly provided to the contrary. (Williams v. Superior Court (1993) 5 Cal.4th 337,
346.) Since disclosure is favored, the exemptions are narrowly construed. (Cal. Const.,
art. I, § 3, subd. (b)(2); Board of Trustees of California State University v. Superior Court
(2005) 132 Cal.App.4th 889, 896.) Indeed, the constitutional provision itself states, “A
statute, court rule, or other authority . . . shall be broadly construed if it furthers the
people’s right of access, and narrowly construed if it limits the right of access.” (Cal.
Const., art. I, § 3, subd. (b)(2).) An agency opposing disclosure bears the burden of
proving that an exemption applies. (Board of Trustees, supra, at p. 896.)
C. Specific Exemptions Applicable to the Instant Case
Here, we are concerned with two possible exemptions. The first is the privacy
exemption. Pursuant to section 6254, subdivision (c), disclosure of records is not
required if they are “personnel, medical, or similar files, the disclosure of which would
constitute an unwarranted invasion of personal privacy.” In the trial court, considerable
dispute arose regarding the nature of the AGT scores and whether documents containing
them reflected “personnel or similar files.” The term “similar files” has been interpreted
to “have a broad, rather than a narrow, meaning.” (Department of State v. Washington
Post Co. (1982) 456 U.S. 595, 600.) They need not contain intimate details or highly
personal information. They may simply be government records containing “information
which applies to a particular individual.”11 (Id. at p. 602.)
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)
11 The records in question here clearly contain information about the AGT scores of
particular teachers. The trial court assumed these records fall within the parameters of
section 6254, subdivision (c).
13
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 catch-all provision set forth in section 6255, which
allows a government agency to withhold records if it can demonstrate that “on the facts
of the particular case the public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the record.” 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.” (Michaelis, supra, 38 Cal.4th at p. 1071.) 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. (CBS, Inc. v. Block
(1986) 42 Cal.3d 646 (Block).) Conversely, when the public interest in nondisclosure
clearly outweighs the public interest in disclosure, refusal to release records will be
upheld. (Times Mirror, supra, 53 Cal.3d at p. 1325; Wilson v. Superior Court (1996) 51
Cal.App.4th 1136, 1141 (Wilson).)
Exemptions under either section require the court to engage in a balancing test.
Under section 6254, subdivision (c), the court balances the public interest in disclosure
against the individual’s interest in privacy. Under section 6255, the court balances the
public interest in disclosure against the public interest in nondisclosure. Since both
exemptions require consideration of the public interest, we next consider what is meant
by that term.
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
14
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 all-encompassing
definition can be provided. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.)
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 pp. 1136, 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
12 As the trial court correctly pointed out, courts do not set public policy. That is a
job for the Legislature. Here, the Legislature has set a general policy in favor of
disclosure of public records. But it has explicitly charged the courts with balancing that
policy against other important public and private interests that may weigh in favor of
nondisclosure, based on the facts of the particular case. (§ 6255.) In this setting, any
court decision regarding disclosure of AGT scores must necessarily be imbued with
considerations of public policy.
15
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 pp. 805, 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 (Id. at p. 1019.)
B. Determining the “Weight” of a Public Interest in a Given Case
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.) While, as a threshold matter, the
13
City of San Jose involved disclosure of the identity of private individuals who had
complained to a government agency. Here, of course, we are dealing with teachers who
are employees of a school district. But even government employees have privacy rights
and “on certain occasions, the public’s right to disclosure must yield to the privacy rights
of governmental agents.” (Versaci, supra, 127 Cal.App.4th at p. 822.) “[O]ne does not
lose his right to privacy upon accepting public employment . . . .” (Braun, supra, 154
Cal.App.3d at p. 347; see also Forest Service Employees v. U.S. Forest Service (9th Cir.
2008) 524 F.3d 1021, 1026 (Forest Service).)
16
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 (Connell).) Again, federal courts are in
agreement. (Hopkins v. U.S. Dept. of Housing & Urban Dev. (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
(§ 6257.5), and the CPRA does not differentiate among those who seek access to them.
(County of Santa Clara, supra, 170 Cal.App.4th at p. 1324.) Moreover, the purpose for
which the requested records are to be used is likewise irrelevant. (Connell, supra, 56
Cal.App.4th at pp. 616-617.) “[T]he question instead is whether disclosure serves [a]
public [purpose].” (County of Santa Clara, supra, at p. 1324.) “‘What is material is the
public interest in disclosure, not the private interest of a requesting party
. . .’ [Citations.]” (Connell, supra, at pp. 616-617.) Thus, in assigning weight to the
public interest in disclosure, courts must look not only to the nature of the information
requested, but also how directly the disclosure of that information contributes to the
public’s understanding of government. (Humane Society of U.S. v. Superior Court
(2013) 214 Cal.App.4th 1233, 1268 (Humane Society); see also Connell, supra, at p.
616.)
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.
17
III. Are the Records Containing the AGT Scores of Individual Teachers Identified by
Name Exempt from Disclosure Under Section 6255?
We begin with the catch-all exemption in section 6255. Preliminarily, we note
that the term “teacher AGT scores,” which has been used frequently throughout the case,
may itself lead to some ambiguity. The issue here is not “teacher AGT scores.” The
issue is “a teacher’s AGT score.” After all, the District has agreed to disclose “teacher
AGT scores.” It has provided them en masse to the Times. The public and the
newspaper can readily discover the AGT scores for all teachers across the District in any
given year. The District and UTLA object to disclosing the AGT score of each teacher
by name. That is the narrow issue in dispute.
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 section 6255, we employ a three-part test: (1) We
determine if there is a public interest served by nondisclosure of the records; (2) If so, we
determine if a public interest is served by disclosure of the records; and (3) If both are
found, we determine whether (1) clearly outweighs (2). If it does not, the records are
disclosed. In applying this test, we keep in mind the public policy favoring disclosure of
14 The parties, especially UTLA, spent much time and effort arguing about the
validity of AGT scores. But that question is not squarely before us and is tangential to
the weighing of interests required in this proceeding. We do not address, much less
resolve, it here.
18
records dealing with the public’s business, the policy of construing exemptions narrowly,
and the fact that the burden is on the party resisting disclosure to prove an exemption
applies.
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 speculative.
Uncertainty regarding the nature and weight of the proof required to support one’s
position under the CPRA pervades much of the case law in this area. Partly, no doubt,
this is because of the need to ascertain what will happen if the records in question are
produced, which in turn requires some degree of prediction of human behavior. And
partly it is because of the nature of the proceedings—i.e., a writ proceeding in which the
usual process of discovery, motions, and trial are telescoped.
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 pp. 646, 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 [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 [the “record contains no evidence” supporting
agency’s claim that names and addresses of customers who exceeded their water
19
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 catch-all 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 1233, 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 section 6255 on the grounds that
releasing the records would be contrary to the public interest by making it more difficult
to conduct future research studies. The Regents presented the testimony of the expert
who directed the study. He expressed his opinions, based upon his years of experience
doing research, about the harm that would be caused by release of the requested
information. The Court of Appeal pointed out that given the expert’s experience, it was
not speculation for him to opine about what would occur if the records were made public.
The court could receive the opinion and consider it in its section 6255 balancing test.
(Humane Society, supra, at p. 1258.)
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.
20
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 higher
performing teachers throughout the District and that “[i]t is human nature for parents to
want to insist on having teachers with the highest performance ratings. If parents had
access to the performance ratings of teachers, parents would be reasonably expected to
battle to ensure that their own children be assigned to the highest-performing teachers,
and away from the lower-rated teachers.” One need not be an expert educator to know
that parents will want the best education for their children. One would certainly expect
that if told the AGT scores of each teacher in their child’s grade, many parents would
15 The reliance on common human experience is highlighted by this exchange at the
hearing on the Times’ CPRA petition:
“[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—”
21
attempt to have their child assigned to the teacher with the higher score and/or away from
the teacher with the lower score.
Fact-finders 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 section 6255, “[T]he facts which drive our
legal conclusions . . . refer to the basic generalized knowledge that a fact-finder possesses
regarding human affairs, and the way the world works.” (California First Amendment
Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 174.) Indeed, courts have often
eschewed the need for expert testimony when matters are within common knowledge and
experience.16
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 pp. 1008, 1018.) After all, if there is little or no
public interest in disclosure, the balance here will easily tilt in favor of nondisclosure.
16 Both federal and California state courts have explained the essence of this rule by
citing singer-songwriter Bob Dylan: “You don’t need a weatherman to know which way
the wind blows.” (Bob Dylan, Subterranean Homesick Blues, Columbia Records, 1965;
see, e.g., Latino Issues Forum v. U.S. E.P.A. (9th Cir. 2009) 558 F.3d 936, 949; Flowers
v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)
22
1. Is the Interest in Learning the AGT Score of Each Teacher, Identified by
Name, a Public One?
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.
23
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
teachers.17 That is a very understandable interest. Few things are more important to a
parent than maximizing the educational opportunities for his or her child. But as strong
as that interest is, it does not directly assist in determining whether the District is
fulfilling its statutory obligations; it does not illuminate whether, or how, the government
agency is doing its job. While it may give parents a tool with which to assist their own
child, it does not help them understand the workings of the agency itself.
This court does not minimize the importance of parental involvement in their
children’s education. But the interest in having one’s child get the best teacher is, at
bottom, a private one. Section 6255’s catch-all provision requires the court to balance
only public interests.
Of course, the presence of a private interest does not preclude a coexistent public
interest. Indeed, in applying section 6255 the court does not delve into the motive or
purpose of the requester in seeking disclosure.18 (§ 6257.5; County of Los Angeles,
17 One might also reasonably infer that if the scores are perceived to play such an
important role in gauging the effectiveness of each teacher, as well as a critical impact on
a child’s future, disclosure of the unredacted scores would tend to cause humiliation and
embarrassment among those with low scores, spur unhealthy comparisons, and generate
discord in the workplace (as predicted by Superintendent Deasy).
18 Nor does the identity of the requester make a difference. Whether an individual or
a major newspaper, “‘[t]he [CPRA] does not differentiate among those who seek access
to public information.’ [Citations.]” (County of Santa Clara, supra, 170 Cal.App.4th at
p. 1324.)
24
supra, 82 Cal.App.4th at pp. 819, 826.) But it is important not to conflate the two
interests, finding a public one where only a private one exists. “What is material is the
public interest in disclosure, not the private interest of the requesting party. . . .” (State
Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1191.) Simply put,
the fact that a member of the public is interested in a matter does not, by itself, make it a
matter of public interest.
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 also 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 p. 1020; 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. 1021, 1025-1027.)
Similarly, where the disclosure of employees’ contact information would not shed light
on an agency’s performance of its duties or otherwise let citizens know what their
government is up to, “the relevant public interest supporting disclosure is negligible, at
best.” (Dept. of Defense, supra, 510 U.S. at pp. 487, 497.)
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
25
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.
C. Balancing the Public Interest in Nondisclosure Against the Public Interest in
Disclosure
We turn now to the third prong of the test—striking the balance.21 For this part of
19 Counsel for the Times indicated that its reporters had sat in classrooms and done
their own assessments of teachers in light of the Times’ value-added scores. This was
consistent with the declaration of LAUSD teacher Karen Caruso submitted to the trial
court, stating that conclusions were drawn about her teaching ability based on the
observations of a Times reporter who said she “seemed reluctant to challenge [her
students].”
20 One need not be an expert in education to foresee the potential disruptive effect on
the ability of the District to do its job if parents (or newspaper reporters) were involved in
this way. If anything, this argument supports the District’s position that nondisclosure is
in the public interest.
21 As noted above, we accept the trial court’s express and implied factual findings, if
supported by the record. But we employ a de novo standard to the balancing test,
undertaking the weighing process anew. (County of Santa Clara, supra, 170 Cal.App.4th
at p. 1323.)
26
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 catch-all 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
22 Unlike most of the CPRA, “[s]ection 6255 has no counterpart in the federal
Freedom of Information Act, and imposes on the California courts a duty which does not
burden the federal courts—the duty to weigh the benefits and costs of disclosure in each
particular case.” (American Civil Liberties Union Foundation v. Deukmejian (1982) 32
Cal.3d 440, 452.)
27
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
could result from such disclosure. Although the court concluded this did not amount to
an unwarranted invasion of privacy, it nevertheless described them as “serious harms.”
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, citing Campbell v.
United States Civil Service Commission (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 (POST) 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 POST, 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
23 The Times initially sought to learn the reasons officers were terminated from their
jobs. But the trial court did not require disclosure of this information, and the Times did
not challenge that aspect of the decision on appeal. (POST, supra, 42 Cal.4th at p. 287,
fn. 2.)
28
how disclosure of this “innocuous information” could “create mischief.” (POST, 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
her job, nor was there any contention that disclosure would be detrimental to the
functioning of a government agency. If anything, POST and International Federation
clearly reveal the difference between the Times’ CPRA request here and CPRA requests
in prior cases where disclosure was required.
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 Penal Code sections 832.7 and 832.8 (the so-called Pitchess
statutes24). These statutes are incorporated into the CPRA via section 6254,
24
See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
29
subdivision (k).25 Neither the Pitchess statutes nor subdivision (k) of section 6254 are
pertinent to the instant case.
City of Long Beach also addressed the balancing test set forth in section 6255,
which is pertinent to our decision here. But in City of Long Beach, there was no
contention that disclosure of an individual officer’s name would have a negative impact
on the operations of the police department as a whole, nor was there a claim that such
disclosure would interfere with the department’s ability to perform its statutory duties.
Here, the District credibly argues that disclosure of teachers’ names linked to their AGT
scores would be detrimental to the overall functioning of the school district, separate and
apart from the impact on any individual teacher.
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 is quite another to ask
about his or her general effectiveness as an officer. By contrast, the AGT score of an
individual teacher—whether valid or not—is specifically designed to provide insight into
the teacher’s effectiveness in his or her job. Thus, disclosure would spur unhealthy
comparisons among teachers and parents, and would adversely affect the disciplinary
process. There is a strong interest in nondisclosure here that was absent in City of Long
Beach.
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
25
Section 6254, subdivision (k) protects “[r]ecords, the disclosure of which is
exempted or prohibited pursuant to federal or state law . . . .”
26
As the Supreme Court explained: “Generally speaking . . . [d]isclosure would
merely communicate a statement of fact that the named officers were involved in the
incident. It would not imply any judgment that the actions taken were inappropriate or
even suspect.” (City of Long Beach, supra, 59 Cal.4th at p. 72, quoting 91
Ops.Cal.Atty.Gen. 11, 16-17 (2008).)
30
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 section 6255 balancing test used by the court in City of Long
Beach, and, as required by statute, apply it to the particular facts of the case before us. In
striking the balance between the public interest served by nondisclosure of teachers’
names linked to their AGT scores versus the public interest, if any, served by disclosure
of those names, we conclude that the former clearly outweighs the latter. The AGT
scores of individual teachers identified by name need not be disclosed by the District.
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 and on individual
teachers. These effects may be interrelated. Indeed, when analyzing a case under catch-
all section 6255, courts may take guidance from interests protected by the specific
27
The Times attempts to demonstrate a public interest in disclosure by citing the
case of Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th
1250. But Marken involved allegations of wrongdoing by a teacher that resulted in a
reprimand for violation of sexual harassment policy. As in City of Long Beach, the goal
was to learn about specific incidents that were unrelated to one’s general effectiveness on
the job. Unlike the instant case, there was no attempt to delve into the effectiveness of
thousands of teachers doing their jobs on a routine basis.
31
exemptions contained in section 6254, since its provisions “will provide appropriate
indicia as to the nature of the public interest in nondisclosure and thus will aid the courts
in determining the disclosability of a document under section 6255.” (Times Mirror,
supra, 53 Cal.3d at p. 1338.)
The trial judge found that the privacy exemption in section 6254, subdivision (c)
does not apply and that the unredacted AGT scores should be disclosed. But we have
found that the catch-all exemption in section 6255 does apply. Records “found to be
nonexempt under section 6254 . . . can still be withheld under section 6255.” (Braun,
supra, 154 Cal.App.3d at p. 345.)
Since the catch-all 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 section
6254, subdivision (c). (Michaelis, supra, 38 Cal.4th at p. 1077 [court does not consider
argument that records are exempt under section 6254 where it had already concluded that
the records were exempt under section 6255].)
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’ 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
28 Understandably, the trial court’s statement of decision did not discuss this issue.
32
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 concluded that the unredacted versions of teacher
AGT scores are exempt from disclosure, the question of whether the Times is entitled to
the location codes remains.
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.” 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 sections
6254 and 6255 would lead to the same, or a different, result.
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.
Since it determined the Times was entitled to individual teacher scores tied to their
names, requiring disclosure of their location codes added nothing of substance that could
not have been gleaned from the unredacted teacher scores themselves.
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VI. Summary
Openness in government is essential to the functioning of a democracy since
“implicit in the democratic process is the notion that government should be accountable
for its actions.” (International Federation, supra, 42 Cal.4th at pp. 328-329.) Our
Constitution and our statutes expressly establish the public’s “right of access to
information concerning the conduct of the people’s business” (Cal. Const., art. I, § 3,
subd. (b)(1)) and provide that the right to obtain records reflecting how the government is
going about its business is “a fundamental and necessary right of every person in the
state.” (§ 6250). However, these rights may conflict with other important private and
public interests. The Legislature has indicated which interests should be balanced, but it
explicitly delegated to the courts the duty of balancing those interests on a case-by-case
basis. Here, a government agency claims that disclosure of certain information would be
an unwarranted invasion of its employees’ privacy and would also be harmful to its
ability to function properly.
AGT scores represent a new and evolving statistical model based upon
standardized tests which themselves are the subject of substantial controversy in a
dynamic and changing education system. We can make no immutable rule as to whether
unredacted teacher AGT scores could be subject to disclosure pursuant to the CPRA
under different facts or circumstances that may arise in the future. But on this record, the
District has met its burden of showing that disclosure would be detrimental to its ability
to perform its statutory duties, separate and apart from whether disclosure justifies a
privacy exemption under section 6254. Since the public interest served by not disclosing
the names of individual teachers tied to their AGT scores clearly outweighs the public
interest, if any, served by such disclosure, the catch-all exemption of section 6255
applies. The District need not disclose the unredacted AGT scores.
However, the case is remanded to the trial court to determine whether the location
codes for each unidentified teacher should be disclosed.
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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’ 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).)
KUSSMAN, J.*
We concur:
BIGELOW, P. J.
FLIER, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
35