Name That Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

B. T HE R IGHT TO I NSPECT The Education Code gives employees the right, “at reasonable intervals and at reasonable times,” to inspect personnel records relating to their work performance or any grievance relating to them. 257 Employees do not have a right to inspect letters of reference, records relating to the investigation of a criminal offense, or records obtained prior to employment. 258 The employer must make personnel records accessible “at the place where the employee reports to work” or “at the location where the employer stores the personnel records,” without loss of compensation to the employee. 259 As long as district rules do not unreasonably limit access, a district may regulate the handling of files and the location of inspections, and may require an employee to give reasonable notice before inspecting a personnel file. An employer need not make personnel records available at a time when the employee is actually required to work. An agency can and should restrict employee access to certain private information provided by third parties, such as confidential performance appraisals, even if the contents are sought by court subpoena. However, it is the employer’s duty and responsibility to protect and assert such third party rights to confidentiality. 260 To that effect, employers should take care to maintain confidential documents separate in the individual employee’s personnel file.

1. I NSPECTION

a. What May Be Inspected Although employees have the right to inspect their personnel files, the Education Code restricts access to some of the information. An employee is not entitled to records relating to the investigation of a possible criminal offense or letters of reference. 261 In addition, an employee is not entitled to ratings, reports or records that were:

 Obtained before the employees employment,

 Prepared by identifiable examination committee members, or

 Obtained in connection with a promotional examination.

An employee’s right of access to private information concerning promotional decisions, salary reviews, and other information affecting employment status must be balanced against an employer’s right to solicit and keep confidential candid and uninhibited assessments/appraisals of employees to be able to make intelligent staffing and advancement decisions. The privacy rights of those whose confidential communications are in the employee’s personnel or promotional files must also be protected. It is an employer’s duty and responsibility to protect and assert third party rights to confidentiality. For example, in Brutsch v. City of Los Angeles, 262 the Court of Appeal refused to permit police officers access to interviewers’ rating sheets which contained the interviewers’ comments recorded during the oral interview portion of a promotional examination. The Court recognized the City’s legitimate interest in protecting the privacy of the interviewers whom had been assured that their comments would be confidential and rejected plaintiff’s suggestion that the City redact

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 87