Commentary: On Confidentiality and Its Misuses by Government

Recent events have brought the issue of confidentiality to the forefront. There are times in government when dealing with the issue of minors or personnel issues that confidentiality is not only legitimate but also necessary to protect the people involved. The dismissal of former Davis Police Captain Nick Concolino is one such use of legitimate confidentiality. He as a former at-will employee of the City of Davis is entitled to having the issue of his dismissal remain confidential. (Although if the city manager is serious about considering him for the new police chief position, the council ought to request he waive that right). That is a perfectly legitimate use. However, other recent uses by both the Davis City Manager and the Davis Joint Unified School District seem more questionable.

The hiring of a new police chief

Tuesday’s Davis Enterprise article cited just such a case where the use of confidentiality is questionable at best (and perhaps inappropriate according to our reading of the law): “Davis City Manager Bill Emlen declined Monday to identify the seven candidates by name.”

In fact, Emlen according to multiple well-placed sources has not informed the members of the Davis City Council as to who the seven candidates are. His rationale was that this was a personnel matter.

Personnel matters do receive a large degree of confidentiality protection. However, under almost no circumstances, are names of applicants or candidates for a job considered confidential. Indeed, as one person I spoke to pointed out, the university is actually required to hold part of their interview process in public at which point the names of those who make it to the presentation stage of the interview are divulged and those individuals have to present their research in front of the public in addition to the hiring department.

In fact, according to the public records act: Personnel, medical and similar files are exempt only if disclosure would reveal intimate, private details. (§ 6254(c)) Employment contracts are not exempt. (§ 6254.8). See also: California Government Code.

While I am not a lawyer, I would have to guess that the name of applicants is not exempt from the public records act, as revealing a name does not reveal any information that is intimate or private. City Manager Emlen then could be required to divulge this information to the public.

This issue also goes back to the heart of our city government model that was discussed last week. Who makes the hire of police chief? The unelected city manager. The city council itself has the power to hire and fire the city manager who then has the sole power to hire and fire employees. There is no transparency in this process.

More concerning is the implication that the elected representatives are being kept out of the loop. Again, some personnel matters I understand being kept from the public. What I continue to not understand is how they can be kept from the City Council who are representatives of the public. And in this case, this appears to be an abuse of confidentiality requirements.

The handling of the Harper Junior High harassment case

We have been reporting on the case stemming from a harassment incident involving a 13-year-old student at Harper Junior High who was harassed by 14 of his classmates because of perceptions about his sexual orientation based on the lifestyle of his father who is gay and lives with a partner of the same sex.

The school district and school board had a long meeting in public about this issue in mid-November where they discussed numerous ways that they were going to deal with it to prevent such occurrences in the future. Let me make this clear—I absolutely applaud those actions. There seems to be a misconception among some in the district and on the board that we are neglecting to include all the things that the District is doing to address the situation.

However, from day one, our main concern has been to get Zach Fischer back into school. And now we have this other kid who likewise we need to get back into school. We just do not believe that the District has addressed these concerns in a timely or adequate manner. Perhaps the District wants to counter this contention, they are welcome to correct this on the record at any point in time.

The school district is basically now arguing that they cannot talk about it on the news or in blogs because of confidentiality requirements. This is an argument or perspective that I simply do not understand. We do not need to know that a specific student, John Doe, has been suspended for three weeks or has an expulsion pending. That is a confidential matter and not our business.

However, if the school district is implementing a zero-tolerance policy for anyone who uses sexual orientation as a means to bully another student—how is that a confidential matter? Or if the school district offered to have an escort for these students between classes to ensure that they were not bullied—how would that be a confidential matter?

What seems to be happening here once again is that the school district is using the fact that there is a pending court case and the fact that these are incidents involving both students and teachers, both of whom are protected by such requirements—to avoid going on the record with a discussion about what is being done to prevent incidents from happening in the future both in general and with specific regard to this student.

Once again, this is an abuse of the confidentiality laws. They are using them not to protect the students or their employees but to protect the district. They are using and misusing confidentiality to cover up and avoid talking about their wrong doing. They undermine transparency in that way. We cannot hold our elected official accountable when they declare these matters closed or use a gag order to keep it secret.

Buzayan Case

This is precisely what we saw happen last spring in the Buzayan case. The juvenile justice system seeks to protect the identity of juvenile offenders precisely to avoid the type of situation that occurred last spring when the release of sensitive material was used to harm the reputation of a minor. A minor in this case who was cleared of any wrongdoing by the judge. Now, Councilmember Don Saylor, Ted Puntillo, Officer Pheng Ly, and Deputy District Attorney Patricia Fong all pointed out that the judge dismissed the case based on the civil compromise. Well it does not matter. In this country, there is a presumption of innocence unless someone is proven guilty by a court of law and when the District Attorney’s office chose to disclose these tapes they violated the rights of a minor to keep such matters confidential.

The District Attorney’s office got upset because the minor and her family were able to talk about the case, but not them. Well that’s how the law is designed and as a public agency that goes with the territory. Under the law, the juvenile and her parents have every right to talk about the case. The law is set up to protect the minor from a smear campaign not to protect the prosecutors and law enforcement from charges of misconduct.

All three of these cases now represent a misuse of confidentiality laws to protect a public agency from charges of misconduct or prevent scrutiny by the public of their actions. We as a community should demand transparency in our government and we must recognize that government officials operate under a public trust that does not exist for private individuals. That means there are different standards of behavior that public officials need to adhere to that private individuals may not. At times that may make it more difficult for the public agency to deal with charges of impropriety, but that is the cost of doing business in a free and open society where the value of accountability and transparency must be paramount.

—Doug Paul Davis reporting