Though we agree with Judge Harry Tobias that a summary of an
investigation into harassment and discrimination charges against
the district attorney is a public record, we would like the judge
to clarify his stance on why the results of the full investigation
will remain sealed.
Though we agree with Judge Harry Tobias that a summary of an investigation into harassment and discrimination charges against the district attorney is a public record, we would like the judge to clarify his stance on why the results of the full investigation will remain sealed.
This is the investigation commissioned by San Benito County when Katie Fancher and Julie Roybal of the Victims Witness Department of the district attorney’s office filed a complaint, and later a lawsuit, claiming they were being harassed by District Attorney John Sarsfield. The results of the full investigation never saw the light of day, but a summary of the investigation was leaked to the Free Lance in February.
The summary showed that the investigator sustained several of the allegations the women made against the district attorney and dismissed others. The investigation determined Sarsfield was retaliating against the two women for perceived political ties to the prior administration, according to the brief. In the end, the county settled the lawsuit with Fancher and Roybal for $35,000, moved the two women to another office and stripped Sarsfield of his authority over the Victims Witness Department.
The whole story, however, may never be known. This week, Tobias ruled that the full investigation is protected by attorney-client privilege because it was prepared for the purposes of the lawsuit and the women never requested it while litigation was pending. Since the case has been dismissed, petitioners are not able to ask for it now, Tobias wrote.
However, he did rule that the brief leaked to the Free Lance is public because it was disseminated to the parties involved during the course of litigation. Furthermore he wrote: “The document is a public record and I believe that the right of the public to have access to the information exceeds any public employee’s right of privacy. The investigation revealed allegations of a substantial nature concerning Mr. Sarsfield’s conduct, and … public disclosure is justified.”
In our view, that standard of public access should override attorney-client privilege for the full report. Who are the clients being protected? The county? Sarsfield?
Sarsfield, as an elected official, rises above the level of an ordinary county employee, and the manner in which he runs his office is a legitimate public concern. And, the county is a public entity that spent taxpayer dollars to generate the report. The public has the right to know what their money bought.
The bottom line is the public still does not know the full story of what happened in the district attorney’s office, leaving the summary open to misinterpretation. Judge Tobias should fully explain why attorney-client privilege outweighs the public’s right to know how the district attorney’s office is run.
