By Marsha Sutton
An online open government project co-founded by Del Mar Internet entrepreneur Michael Robertson hit a speed bump along the information superhighway, when the Del Mar Union School District delayed releasing data requested by Robertson through a formal California Public Records Act request.
site, to be launched later this month, will allow users free access to a wide range of governmental documents, initially beginning with the names, titles and salaries of school district employees from school districts throughout the country.
Robertson and his partner John Parres submitted PRA requests asking 50 school districts to provide this information. Only Del Mar refused to comply fully based on privacy rights, claiming the district was legally obligated to protect the privacy of individual employees earning less than $100,000 annually.
“I find this outrageous and appalling behavior,” Robertson said. “There is no right to privacy which allows DMUSD to not respond to our request with the names, titles and salaries of all employees.”
Del Mar finally complied with the request this week when threatened with legal action, after three weeks of resistance.
Scott Mann, DMUSD’s assistant superintendent for business services, initially provided only the names, titles and salaries of all employees earning more than $100,000 annually, along with the certificated and classified salary schedules.
Parres objected and wrote to Mann, saying, “The documents you provided are general in nature. Other school districts I have contacted provided specific listings as requested with no hesitation.” He provided the response from the Boulder Valley School District in Colorado as an example.
Mann wrote back, saying, “First of all, let's be clear. I am not ‘rejecting’ your request as I have fully complied with it. Case law from the courts has held that total compensation under $100,000 for employees shall not be released because of privacy rights of the individual employee. I have complied with your request under the PRA.”
Mann said in a follow-up email, “The Del Mar USD considers your request fulfilled.”
Saying the Del Mar Union School District does not “have the right to decide what requests to honor and to what extent,” Robertson wrote to DMUSD superintendent Jim Peabody, explaining the impasse and promising to “escalate the situation if DMUSD does not fully respond to the multiple Public Records Act requests which have been submitted to Mr. Mann.”
After investigating the matter, Peabody wrote back to Robertson, saying, “I have asked Scott Mann to produce the title and salary of all employees for you.”
This time the DMUSD sent the titles and salaries of each employee, but with the names redacted. Robertson criticized Del Mar’s reluctance to provide the complete data. He said the Los Angeles Unified School District and the San Diego Unified School District were both asked for the same information, and both cooperated fully with the request, as did most of the 50 school districts that were also asked.
“Our request to you was straightforward and unquestionably allowed by law,” wrote Robertson to Peabody. “I am quite puzzled at the delays and nonresponsiveness by your DMUSD staff to this request.”
Robertson told Peabody that he will not “stand by and let DMUSD ignore the law” and will “file a lawsuit to force DMUSD to comply with the laws of our state.”
The initial request was made to Del Mar on Oct. 8. On Oct. 28, Robertson received an email letter from attorney Susan Gilmor, of the law firm of Stutz Artiano Shinoff & Holtz, writing on behalf of the DMUSD. Gilmor defended the district’s decision to withhold the information.
“We have reviewed the recent cases regarding public disclosure of public employee salaries, which are specific to employees earning $100,000 a year or more,” Gilmor wrote. “You have asserted your position that you are entitled to all employee names and salaries. Please tell us what case you are relying upon that specifies that employees earning less than $100,000 a year are not exempt from public disclosure by name.”
She said the district’s position is “not to engage in a fight with you. We have a constitutional duty [to] ensure that we do not invade privacy rights. While we understand that the public has a strong interest in monitoring public expenditures, it [is] our duty to follow the law. It is our position that the courts have not ruled that the names and salaries of public employees earning less than $100,000 a year would be subject to disclosure.”
Robertson challenged Gilmor’s interpretation of the $100,000 threshold. “There's no exclusion for [an] employee's salary under $100,000,” he wrote to her. “Citizens do not have a duty to justify why a request is warranted. Rather DMUSD is obligated to follow the law and provide public records. The party seeking to withhold public records bears the burden of demonstrating that an exception applies.”
“There is nothing in the law or ruling to suggest government employees with $99,999.99 salaries are entitled to a different or greater right of privacy than someone making $100,000 per year or more,” he added.
Robertson again threatened legal action if the request was not honored. “If DMUSD[’s] intention is to use the same privacy excuse to shirk their legally required duties which the courts at the highest level in our state have rejected then they will lose that case and squander taxpayers money,” he wrote. “DMUSD does not get to decide what is good for people to know.”
Robertson said schools “commonly complain about not having enough money, but when a citizen places a request to see where the money is going they are stonewalled.”
Terry Francke, First Amendment rights attorney and founder of Californians Aware, said Robertson’s legal case was strong.
“The California Supreme Court decision concluding that public employees' salaries are subject to disclosure under the California Public Records Act stemmed from a request for the salaries of Oakland city employees earning $100,000 or more,” he said in an email. “But the court neither expressly nor impliedly limited its public disclosure ruling to salaries in that amount, and almost no public agencies are interpreting it that way.
“If sued, I'm confident this district would lose, and have to pay the requester's attorney fees.”
CalAware is a nonprofit organization specializing in helping the public understand California’s open-meeting Ralph M. Brown Act, the Public Records Act, First Amendment rights and open-access government issues.
Robertson had his attorney contact Gilmor directly and asked him to explain to her “that I understand the law and I’m intent on making this happen and there’s just better things for the school district to worry about.”
After speaking with Robertson’s attorney, Gilmor wrote the following email to Robertson: “Thank you for your response and patience. As I mentioned, my concern was to ensure that a release of names would not subject the district to claims of violating personal privacy rights. I appreciate your input and the time you allowed so that I could make certain that the statutes and laws were interpreted correctly.”
Gilmor said the district has been instructed to provide the requested information, all of which was sent to Robertson by Mann on Nov. 1 with the following note: “By direction of the Governing Board, the attached PDF file was prepared for your use under the CPRA and contains all information you previously requested.” Peabody later clarified that only board president Steven McDowell rather than the full Board of Education met to discuss this issue.
Peabody said he referred the matter to the district’s attorneys, who initially told him that the names of employees earning less than $100,000 per year should not be disclosed.
In agreeing to release the information, he said, “If it’s going to get into a legal squabble, it’s just going to eat up some district resources.”
Peabody said he was concerned about the reaction of teachers and was informing union leadership that the names of every employee, their titles and salaries was about to be made public. “I worry that they’ll be upset, but I think they will understand,” he said.