Parnes v. Superior Court

[833]Opinion

KANE, J. — This matter comes to us with directions from the Supreme Court to issue an alternative writ of mandate. Petitioners are three former faculty members of the California State University, San Jose, who are plaintiffs in two consolidated actions brought against real parties, defendants in the actions. In their complaints, petitioners allege that they were denied tenure and/or retention in retaliation for exercising protected First Amendment rights, i.e., for opposing the election of their department chairman. Petitioners seek mandate after the trial court denied a motion to reconsider its prior orders denying their motions for discovery and to compel answers to questions propounded at a deposition. Petitioners contend that the trial court has violated the principles enunciated in Shepherd v. Superior Court (1976) 17 Cal.3d 107 [130 Cal.Rptr. 257, 550 P.2d 161]. We issued an alternative writ to consider petitioners’ contentions, and we agree that the matter must be remanded to the trial court to comply with the principles of Shepherd.

Petitioners, in their motions, sought to discover documents submitted to an academic senate committee which conducted an investigation of personnel procedures at the university and personnel documents which they contend may show that the department chairman and the administration arbitrarily ranked them low in comparison to other candidates. They also sought to compel the testimony of the department chairman on the subject of rankings. Real parties asserted the privilege for official information in accordance with Evidence Code section 1040, and Government Code section 6254.1

In Shepherd, a wrongful death action against a city and certain of its employees, the district attorney claimed absolute privilege, as afforded by Evidence Code section 1040, subdivision (b)(1),2 on the ground that Government Code section 6254, subdivision (f), forbade the disclosure of documents in his possession.3 The court held that Government Code [834]section 6254, had no application to any procedure not under that act (the California Public Records Act), and that the sole ground of privilege applicable under the circumstances of that litigation was the conditional privilege set forth in Evidence Code section 1040, subdivision (b)(2): “ ‘A public entity has a privilege to refuse to disclose official information [defined in subdivision (a) of the section as “information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made”], and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so and: ... (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.’ ” (Shepherd v. Superior Court, supra, 17 Cal.3d at p. 124.)