MDUSD logs documents related to teacher molestation arrest withheld from Bay Area News Group’s Public Records Act request
By Theresa Harrington
Friday, April 4th, 2014 at 10:56 am in Mt. Diablo school district.
The Mt. Diablo school district’s attorney has responded to a court order to produce logs of documents being withheld from Bay Area News Group’s Public Records Act request seeking “Any and all writings pertaining to Mt. Diablo Unified School District teacher Joseph Andrew Martin, 45, relating to allegations of wrongdoing (including inappropriate behavior with students), complaints, investigations, findings, discipline meted out or other action taken against Mr. Martin during his tenure at the district…”
Martin was placed on administrative leave in April and was subsequently arrested and charged with 150 counts of molestation involving 14 former students while he taught at the Concord campus. His trial has been postponed until May.
The district provided Bay Area News Group, or BANG, with two notices related to the court order.
The first is a Notice of filing, which includes a short list of two documents the district is withholding from Bay Area News Group that are not protected by attorney-client privilege:
It lists two e-mails from the district’s associate general counsel Deborah Cooksey to Concord Police Detective Tamara Roberts, which discussed criminal charges against Martin. The district claims several privileges that it argues entitle it to withhold the documents from the public, including official information, pending investigation, confidential information, attorney work product privilege and deliberative process privilege.
In its discussion of the documents, the district states that the e-mails contain information regarding an “unfinal personnel decision by the district’s legal counsel.”
“If the district is required to disclose this information, it will commit the district to premature personnel decision and expose the district’s legal counsel investigatory process,” the district argues.
“Said communication also evidences the legal counsel’s work product and impressions. Further, said document may potentially be excluded from the definition of a public record,” according to the district.
It concludes by arguing that the e-mails reveal the district and legal counsel’s “investigatory efforts both as to allegations of wrongdoing and on confidential personnel decisions,” which it argues are expressly excluded from disclosure.
The second item provided to BANG is a Notice of Lodging Privilege Log, which states that a confidential privilege log of documents protected from disclosure due to attorney-client or attorney-work product privilege has been lodged with the court: https://drive.google.com/file/d/0B6mS2O1_NKceWlhqcUdqVW1UUDQ/edit?usp=sharing. It does not include Exhibit A, which is the list of documents being withheld.
Interestingly, the district did not list the letter that was sent home to Woodside Elementary parents when Martin was placed on his leave of absence. It is difficult to imagine how that letter could be construed to be subject to attorney-client privilege or attorney-client work product.
Do you agree with the district’s decision to list only two e-mails as potentially responsive to BANG’s Public Records Act request and to keep the list of “confidential privilege” documents provided to the court secret?