Part of the Bay Area News Group

News group’s fight to obtain district documents heading to court this month

By Theresa Harrington
Sunday, March 9th, 2014 at 11:43 am in Concord, Education, Mt. Diablo school district.

The jury trial for former Woodside Elementary teacher Joseph Martin — who has been charged with 150 counts of molestation involving 14 former students while he taught at the Concord campus in the Mt. Diablo school district — has been postponed until May.

But, the Bay Area News Group, or BANG, lawsuit seeking district records related to an internal report about suspicions of abuse raised in 2006, along with any other relevant documents, is set to be heard March 19 in Contra Costa County Superior Court.

Attorneys for both sides have been busily trading legal briefs and declarations bolstering their opinions during the past month.

The district is staunchly defending its decision to withhold the documents sought based on a variety of exemptions asserted under the California Public Records Act. The newspaper group disputes these asserted exceptions and is asking the court to require the district to list everything that is being withheld and to review the documents privately, then decide whether or not they should be released.

Here’s a rundown of the arguments by both sides:

The district asserts that every document being withheld is prohibited from public disclosure because it contains identifiable education information for a minor, education records, attorney-client information, and attorney work product information, as well as information protected by individual privacy laws. The district asserts that a 2006 internal report prepared by outside attorney Mark Williams related to alleged improper behavior by Martin is exempt from disclosure because it was provided to police in confidence and police compelled the district to provide it as part of the police investigation of Martin.

BANG attorney Duffy Carolan counters: “It is inconceivable under the strong body of law governing access to records of public employee wrongdoing that all responsive records pertaining to complaints known to Mt. Diablo Unified School District to at least suggest child abuse by Woodside Elementary School teacher Joseph Martin would be exempt from public disclosure in their entirety.”

The district’s “vague and unsupported privacy arguments are patently insufficient to establish that any record it is withholding is exempt,” Carolan says, in a court document filed Feb. 26. In addition, she says the district failed to explain why removing the names of students would not suffice to protect student privacy and she disputed the district’s claim of attorney-client privilege related to the 2006 report.

“In sum,” Carolan wrote, “the district has utterly failed to meet its heavy burden of proof in this case to overcome the strong public interest in access to records that will shed light on the district’s handling of serious allegations of wrongdoing that have already imperiled the well-being of its students and raise legitimate concerns about student safety throughout the district.”

Although the district has not named the documents it is withholding, Carolan asserts that a paper trail leading to the decision to call police in 2013 must exist. She suggests that documents being withheld could include: an April 24, 2013 complaint from the mother of a Woodside Elementary student to then-Principal Jenny Cronan, notification from Cronan to the assistant superintendent for personnel about the complaint, direction to call police, and notification to Martin that he was being placed on administrative leave.

Related to the 2006 incident, Carolan suggests documents being withheld could include: a report received by then-Principal Jennifer Sachs that Martin was “focusing” on some students over others, Sachs’ notification to the assistant superintendent for personnel about this complaint, the conclusion by the district that an investigation was necessary, records relating to an internal investigation into “alleged suspicious behavior” by Martin, writings detailing the suspicious behavior, records showing Sachs was “tasked with conducting the investigation,” and the 2006 letter provided by Williams.

Links to court documents filed by both sides are below:

BANG Request for In Camera Review of MDUSD documents: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceOWJVWVdYOTVDbXc/edit

Proposed Order for In Camera Review of MDUSD documents: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceOWJVWVdYOTVDbXc/edit

MDUSD opposition to BANG petition: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceV2JFU29NUlVqeDQ/edit

Declaration of MDUSD attorney Deb Cooksey: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceVlJPYnB1bU9ZZUk/edit

Declaration of outside attorney Mark Williams: https://docs.google.com/a/bayareanewsgroup.com/file/d/0B6mS2O1_NKceOWJVWVdYOTVDbXc/edit

BANG reply to MDUSD: https://drive.google.com/file/d/0B6mS2O1_NKceNDZ2THNuaU1ya3M/edit?usp=sharing

Do you think the court should review the documents being withheld to determine whether or not they should be released?

MARCH 18 UPDATE:

Here is the judge’s tentative ruling:

“29. TIME: 9:00 CASE#: MSN13-1551
CASE NAME: BAY AREA NEWS GROUP VS MT DIAB
SPECIAL SET HEARING ON: WRIT OF MANDATE SET BY STIPULATION/COURT
* TENTATIVE RULING: *

Petitioner Bay Area News Group’s petition seeking further disclosure of records is granted. It is premature to rule on the exemptions and privileges asserted by Respondent until a complete list of the specific documents being withheld is produced and correlated with the exemption and/or privilege claimed by the District. By April 2, 2014, Respondent is ordered to create a list of each responsive document or portion thereof being withheld, describing it in detail and for each document being withheld, Respondent must discuss the consequences of disclosing the sought-after information. Conclusory or boilerplate assertions that merely recite the statutory standards are not sufficient. See American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 82-85; State Board of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1192-1193.

The court rules on Petitioner’s objections as follows:

Declaration of Deborah Cooksey

Cooksey Decl., paragraph 11: Sustained – hearsay

Declaration of Mark Williams

Williams Decl., paragraph 3, starting with “I” and ending with “appropriate”: Sustained – relevance
Williams Decl., paragraph 3, starting with “One” and ending with “conduct”: Overruled
Williams Decl., paragraph 4, starting with “That” and ending with “privileged”: Overruled
Williams Decl., paragraph 4, starting with “Further” and ending with “communication”: Overruled”

Here are the objections: https://drive.google.com/file/d/0B6mS2O1_NKceWnRFU2JnUkprd1E/edit?usp=sharing

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