Metropolitan News-Enterprise


Wednesday, January 25, 2012


Page 1


C.A. Rejects Bid to Block Release of Sexual Harassment Report




The public interest in learning the details of an investigation into a substantiated complaint of sexual harassment by a schoolteacher outweighs the teacher’s right to privacy, the Court of Appeal for this district ruled yesterday.

Div. Seven affirmed Los Angeles Superior Court Judge Ruth Ann Kwan’s order denying Avi Marken’s motion for a preliminary injunction. The Santa Monica High School math teacher sought to bar the Santa Monica-Malibu Unified School District from releasing the investigation report and reprimand resulting from a 2008 complaint by the parent of a student.

Presiding Justice Dennis Perluss, writing for the panel, said that Marken had standing to sue to prevent the district from disclosing his personnel records under the California Public Records Act.  But Kwan did not abuse her discretion by allowing the district to make the disclosure, the presiding justice concluded.

Investigator’s Finding

The report was issued by an independent attorney engaged by the district to investigate the parent’s complaint. The attorney concluded—based on interviews with the parent, two administrators, and school staff members—that the allegations were “more likely than not” to be true, although she said the investigation was incomplete because the parents would not allow the student to be interviewed and other students who might have knowledge of the facts were not interviewed.

The district decided to resolve the matter by issuing a written reprimand, along with directives that Marken avoid further interaction with the student, who was in the ninth grade at the time of the allegedly improper behavior, and take other actions to avoid any further difficulties. It also turned the report over to police, as required by district policy, but no criminal charges were filed.

In 2010, Michael Chwe, a UCLA political science professor and parent of two SMHS students, filed a public records request for “copies of all public records . . . concerning the investigation of Santa Monica High School teacher Mr. Ari Marken and the resulting decision to place him on leave in December 2008 for sexually harassing a thirteen-year-old girl.”

‘Reverse CPRA’

After reviewing the request, the district’s counsel notified Chwe that the district had informed Marken of its intent to release the records, but that Marken’s counsel had asked for a delay in order to bring legal action. Marken subsequently brought his “reverse CPRA” suit for declaratory and injunctive relief.

Chwe filed a petition for writ of mandate seeking to compel disclosure, and requested that his and Marken’s actions be deemed related and assigned to a single judge. That request was heard by Judge Ann I. Jones, who denied it.

Chwe than filed an ex parte application for leave to intervene in Marken’s action, which Kwan denied as untimely. But Kwan, after ex parte review of the documents, concluded that Marken failed to carry his burden of showing that his privacy interest was superior to the public interest in disclosure.

Marken appealed the denial of the preliminary injunction, while Chwe appealed the denial of his application to intervene.

Perluss, writing for the Court of Appeal, explained that under the CPRA, a public agency must disclose any record within its possession unless that record is exempted from disclosure by the act or by another provision of state or federal law. But the act, he noted, expressly permits an agency to waive any claim of exemption and disclose the requested record unless disclosure is specifically prohibited.

 While no court has expressly held that a person may be bring a reverse CPRA action, Perluss said, such an action is appropriate because there would otherwise be no way to block an agency from making a prohibited disclosure. He noted that federal courts allow such actions under the Freedom of Information Act, which is analogous to the CPRA.

But a reverse CPRA action, he emphasized, can only be brought to block a disclosure that is prohibited and not merely the subject of an exemption, because the agency has the right to waive the exemption.

 Perluss went on to say that a person requesting disclosure should generally be allowed to intervene in such a lawsuit as a matter of right, or joined as an indispensable party, either by the plaintiff or the court.

“A successful reverse-CPRA lawsuit seeking to prevent a public agency from releasing information on the ground the requested disclosure is prohibited by law will necessarily affect the rights of the party requesting the information—a party whose interest in access to public records is recognized by [Proposition 59, added to the state Constitution in 2004] as well as the CPRA, and protected by specific provisions of the CPRA authorizing litigation to compel disclosure,” the presiding justice wrote.

Turning to the merits, Perluss rejected the contention that the right to privacy in the state Constitution, and the employee privacy provisions of the Government Code and Education Code, prohibit disclosure under the circumstances. He cited Proposition 59, which provides that exemptions from, and prohibitions against, disclosure are to be interpreted narrowly, and Government Code Sec. 6254(c), which exempts personnel records from disclosure only if the invasion of privacy is “unwarranted.”

He acknowledged the balancing test recognized in earlier cases involving charges of teacher or other public employee misconduct, recognizing that disclosure of an unsubstantiated charge may damage the reputation of an innocent person. But he rejected the plaintiff’s argument that a charge that has been sustained may nonetheless be found insubstantial and shielded from public view.

It is true, Perluss acknowledged, that Marken’s misconduct was less serious than that in an earlier case where the Court of Appeal found disclosure to be warranted. “But Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy,” the jurist said.

As for Chwe’s appeal, Perluss concluded that the denial of his ex parte application was not appealable. But if further proceedings are necessary in the trial court, he said, Chwe can again assert the right to intervene.

Attorneys on appeal were Richard J. Schwab, Lawrence B. Trygstad, Daniel J. Kolodziej and Lillian Kae of Trygstad, Schwab & Trygstad for Marken; James Baca, Elizabeth Zamora-Mejia, and Heather A. Dozier of Atkinson, Andelson, Loya, Ruud & Romo for the district; and Thomas R. Burke, Alonzo Wickers IV, and Jeff Glasser of Davis Wright Tremaine for Chwe.

The case is Marken v. Santa Monica-Malibu Unified School District, 12 S.O.S. 289.


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