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

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

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.

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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,

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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

the names of the interviewers from the rating sheets to allow disclosure. The Court held that the

plaintiff’s proposed solution was inadequate for three reasons: (1) since the comments are in the

interviewers’ own handwriting, plaintiffs may recognize their writing; (2) the possibility that

the wording of some of the comments would in and of itself provide a clue to the drafter’s

identity; and lastly, (3) some interviewers made their comments on the examination forms

themselves presumably in reliance on the promised confidentiality.

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Board of Trustees, etc. v. Superior Court,

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an employee sought discovery of the entire

contents of his own personnel file. The University refused to produce written references and

statements made by third parties under a guarantee of confidentiality. The Court of Appeal held

that the University should make appropriate deletions and produce all such documents which

could be so produced without divulging the identity of the third parties who had been guaranteed

confidentiality. The Court reached this result by balancing the employee’s right of access under

Labor Code section 1198.5 against the interest in maintaining the confidentiality of such

statements.