San Benito County may have violated the California Public
Records Act by withholding an investigative report into District
Attorney John Sarsfield’s office, according to attorneys from the
California Newspaper Publisher’s Association.
Hollister – San Benito County may have violated the California Public Records Act by withholding an investigative report into District Attorney John Sarsfield’s office, according to attorneys from the California Newspaper Publisher’s Association.
A copy of a pre-mediation brief summarizing the contents of the full report was leaked to the Free Lance last month, and spurred the Board of Supervisors to allocate $5,000 to investigate county officials and employees to determine the source of the leak.
But CNPA attorney Jim Ewert said the report, commissioned and paid for by the county to look into sexual harassment allegations in the District Attorney’s Office, never should have been kept secret because it deals with specific actions of an elected official.
“The public has a right to that report unless an exemption applies,” Ewert said. “An agency may withhold information if it’s personal or medical or along those lines. But because (Sarsfield is an elected official) the county had a duty to provide the document with names redacted.”
While the investigation concluded that Sarsfield did not sexually discriminate against the two women in the Victim Witness Department who filed the suit, it stated the prosecutor retaliated against four of his employees because he believed they were aligned with the previous administration, according to the brief.
The Free Lance has filed a public records act request for a copy of the report several times from County Counsel Karen Forcum, but the requests were denied. Forcum stated the report’s release would be an unwarranted invasion of Sarsfield’s privacy and that of others named in the report, and because a confidentiality agreement was signed by all parties involved in the lawsuit, she said. The women’s lawsuit was settled for $35,000 and several other conditions. And the entire matter has cost the county about $160,000, according to county sources.
However, Ewert said the county violated the public records act right off the bat when it agreed to the confidentiality agreement. The county also violated the public records act when it declined to release a copy of the report with names other than Sarsfield’s blacked out, which the Free Lance also requested.
“There is nothing in the public records act that permits a private agreement between individuals to withhold information from the public,” he said. “And the county has a duty to redact information and provide the remainder of the report and they failed to do that. That raises the very important question – now they’re spending an additional $5,000 to find out who leaked a document that’s questionable in the first place.”
Forcum declined to comment on Ewert’s stance that the county acted illegally and said she would have to research the matter before making a statement. However, she argued the report was exempt from public disclosure because it deals with personnel issues.
But because Sarsfield is a public, elected official, the standard of privacy that applies to him is different from that of the average citizen, Ewert said. While the report’s contents could be an unwarranted invasion of privacy of those interviewed during the investigation, its release does not constitute an unwarranted invasion of privacy for Sarsfield, he said.
After publishing articles about the mediation brief, the Free Lance requested a copy of the full report from the private law firm that conducted the investigation, Liebert Cassidy Whitmore. The county’s outside attorney, Rick Bolanos, said because his is a private firm it is not subject to requests made under the public records act. Instead, requests must be made through the county, he wrote in a reply to the request.
But the county does not have a copy of the full report and never has, Forcum said. No one in San Benito County, including Forcum and the Board of Supervisors, have ever laid eyes on the full report or know what it contains, she said. Supervisor Reb Monaco, who saw a copy of the mediation brief last October, declined comment Thursday.
The county has received three other requests for copies of the full report besides the Free Lance’s, and Forcum said county officials are considering the requests and deciding how to proceed.
“We simply do not have the report at this time, but it is something within the county’s control,” she said.
Bill Marder, the attorney for the women who filed the lawsuit, also believes the report should be made public and made his own public records act request for the full report through the county, he said.
Marder believes that because Sarsfield and the county never attempted to obtain a court order to preserve the report’s confidentiality – called a protective order – that any claim of privacy was forfeited.
Marder also argued that case law states that when complaints of a public employee’s wrongdoing result in a disciplinary investigation, which reveal allegations of a substantial nature, the public’s right to know outweighs the public employee’s privacy.
“In Sarsfield’s case, many of the allegations were sustained,” Marder said via e-mail. “Thus, the allegations were both serious and there is reasonable cause to believe the complaint is well founded.”
The Free Lance made its fifth public records request for the investigative report Thursday.
Erin Musgrave covers public safety for the Free Lance. Reach her at 637-5566, ext. 336 or
em*******@fr***********.com
