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RMP-9, Guidelines for Access to University Personnel Records by Governmental Agencies - Maintenance, Access, Opportunity to Request AmendmentJuly 1, 1987
APPENDIX A
ACADEMIC PERSONNEL RECORDS APM - 160
Maintenance of, Access to, and
Opportunity to Request Amendment of
160-20 Access to Academic Personnel Records (continued)
b. Definition of Types of Information Maintained by the University About
Academic Employees
(1) "Confidential academic review records" is that information which
contains:
(a) A letter of evaluation or other statement pertaining to an
individual received by the University with the understanding
that the letter or statement will be held in confidence and
that the individual will not be given access to it (and any
other documents which would disclose the identities of those
who have provided such letters or statements).
(b) A letter from the chairperson (or equivalent officer) setting
forth a departmental recommendation in connection with an
academic personnel action concerning the individual, such as
appointment, promotion, merit increase, appraisal,
reappointment, nonreappointment, or terminal appointment.
(The Chancellor may provide that under departmental policy
such a letter may be disclosed to the individual [without
disclosure of the identities of persons who were the sources
of confidential documents].)
(c) Reports, recommendations, and other related documents from
administrative officers and campus ad hoc and standing
commitees concerning evaluations of the individual under
applicable University criteria in connection with an
academic personnel action, such as appointment, promotion,
merit increase, appraisal, reappointment, nonreappointment,
or terminal appointment.
August 20, 1984
DISCLOSURE AGREEMENT
A. The California Department of Fair Employment and Housing (hereinafter
"DFEH") is responsible for investigating charges of employment
discrimination filed with the Department. In the course of investigating
such charges, DFEH often asks to inspect or obtain copies of certain
information pertaining to the complainant in the custody of an affected
employer in order to determine if there is merit to the charge. When
investigating a charge brought against the University of California
(hereinafter "University"), DFEH at times desires to inspect and copy
personnel records which include academic review records for University
academic employees or candidates. These academic review records are
deemed confidential by the University. These academic review records are
those listed in Academic Personnel Manual section 160-20-b-1 (Rev.
7/5/84). (Appendix A of this Agreement.) Both parties recognize that in
conducting its investigation DFEH has the legal right of access to
University records, subject to certain legal limitations and
restrictions. This Agreement sets forth the parties' understanding
regarding DFEH's access to such records.
The University recognizes that DFEH has a statutory obligation to
complete its investigation within one year of the date the complaint is
filed. DFEH recognizes that the University needs sufficient advance
notice in order to prepare certain documents for discovery pursuant to
the terms of this Agreement. Therefore, the parties to this Agreement
agree to the timetables specified as a general guide. These timetables
shall not preclude earlier compliance or different timetables agreed
upon between the parties in any individual case.
B. Access to Records.
B-1. Whenever DFEH investigates a charge of discrimination brought by
an academic employee or candidate about whom the University
maintains academic personnel records which are confidential
pursuant to University policy, DFEH may review all relevant
existing University personnel records of the charging party which
are not confidential academic review records. If a comprehensive
summary of confidential academic review records exists, the
summary shall be included in the records reviewed. DFEH may also
request copies of the records pursuant to Section D-1 of this
Agreement without prior on-site review.
B-2. If DFEH then determines that access to relevant existing University
personnel records of non-charging parties which are not confidential
academic review records is necessary for the conduct of the
investigation for purposes of comparison, DFEH shall explain in
writing the basis for its request to the Academic Vice Chancellor
of the affected campus. The University will afford DFEH the
opportunity to inspect those records on site within
twenty (20) days of receipt of the written request of DFEH. If
comprehensive summaries of confidential academic review records
exist, the summaries shall be included in the records reviewed.
B-3. If after review of records under B-1 or D-1 of this Agreement DFEH
determines that access to the academic review records of the
charging party which are deemed confidential by the University is
necessary for the conduct of the investigation, DFEH shall explain
in writing the basis for its request to the Academic Vice
Chancellor of the affected campus. In response to such a request,
if the University has previously provided DFEH with the
comprehensive summary of the charging party under D-1, the
University shall allow DFEH to review the original confidential
academic review records, or copies thereof, with the names and
identifying particulars of reviewers deleted, on site in order to
authenticate the accuracy of the summaries within twenty (20) days
of DFEH's request.
If a comprehensive summary of confidential academic review records
for the charging party does not exist or does not cover
confidential academic review records applicable to the period of
the complaint, the University shall first prepare and provide DFEH
with a comprehensive summary of the requested records, setting
forth the substance of those records, except for information
which would reveal the sources of the records and as specified in
Academic Personnel Manual section 160-20-c-2 (Rev. 7/5/84).
(Appendix A of this Agreement.) The University shall not consider
such summary confidential. DFEH agrees to allow the University up
to four (4) weeks from the written request to prepare the
comprehensive summary of the requested records of the charging
party.
If DFEH then requests, the University shall allow DFEH an
opportunity to review the original confidential academic review
records, or copies thereof, with names and identifying particulars
of reviewers deleted, on site in order to authenticate the
accuracy of the summaries upon twenty (20) days' notice by DFEH of
its request for said review.
B-4. If after review of records under B-2 or D-2 of this Agreement DFEH
determines that access to the academic review records on
non-charging parties which are deemed confidential by the
University is necessary for the conduct of DFEH's investigation for
purposes of comparison, the DFEH consultant shall notify his/her
District or Regional Administrator and the Academic Vice
Chancellor of the affected campus. The District or Regional
Administrator of the DFEH office involved shall explain in
writing to the Academic Vice Chancellor the basis for the request
and that access is in conformity with DFEH criteria used by
consultants in such investigations.
In response to such a request, the University, if comprehensive
summaries of confidential academic review records for comparable
non-charging parties do not exist or do not cover confidential
review records applicable to the period of the complaint, shall
first prepare and provide DFEH with comprehensive summaries of the
requested records, setting forth the substance of those records,
except for information which would reveal the sources of the
records and as specified in Academic Personnel Manual section
160-20-c-2 (Rev. 7/5/84). (Appendix A of this Agreement.) The
University shall not consider such summaries confidential as to
the party to whom the summary pertains. DFEH agrees to allow the
University up to eight (8) weeks from the written explanation by
the District or Regional Administrator of the DFEH office involved
to prepare the comprehensive summaries of the requested records of
the comparable non-charging parties.
If DFEH then requests, the University shall provide DFEH with an
opportunity to review the original confidential academic review
records, or copies thereof, with names and identifying particulars
of reviewers deleted, on site in order to authenticate the
accuracy of the summaries upon twenty (20) days' notice by DFEH of
its request for said review.
B-5. If after review of records under B-3 or B-4 of this Agreement DFEH
then determines that information about reviewers is necessary for
the conduct of its investigation, the District or Regional
Administrator shall state in writing its need or the information.
Within ten (10) days of receipt of DFEH's statement of need the
Academic Vice Chancellor or designee shall consult with DFEH.
Within five (5) working days of the consultation, the University
will provide the information requested about, but not the names
of, reviewers (e.g., gender, ethnicity, discipline). Nothing in
this paragraph shall be interpreted to prevent DFEH and University
from modifying the scope of the original request by agreement
during the required consultation.
B-6. Finally, if the District or Regional Administrator of the DFEH
office involved provides a written statement why access to the
academic review records in unredacted form is necessary to the
investigation and, that the result is in conformity with DFEH
criteria used by consultants in such investigations, the Academic
Vice Chancellor or designee shall consult with the District or
Regional Administrator within ten (10) days of receipt of DFEH's
statement. Within five (5) working days of the consultation, the
University will afford DFEH the opportunity to review the original
confidential academic review records in unredacted form on site.
Nothing in this paragraph shall be interpreted to prevent DFEH and
University from modifying the scope of the original request by
agreement during the consultation.
The University reserves the right to raise legal objections to
DFEH's request to review the documents specified in paragraph B-6
on the grounds that the information requested is not reasonably
relevant to the matter under investigation or on such other bases
as might be available under applicable law. Written notice of
refusal to provide access to any part of the documents specified
in B-6 shall be provided by the University to DFEH within five (5)
working days of the consultation specified above, setting forth
the reasons for such refusal.
C. Notes. The DFEH consultant shall be permitted to take notes of
conversations as well as documents reviewed at the on-site review. In
the event that the consultant takes notes, such notes will be regarded
as information obtained under a promise of confidentiality, pursuant to
the provisions of paragraph E-1 of this Agreement.
D. Removal of Copies of Records.
D-1. The University shall provide copies of all relevant existing
University personnel records of the charging party which are not
confidential academic review records within ten (10) days of DFEH's
request. If a comprehensive summary of confidential academic review
records exists at the time of DFEH's request, it shall be included
in the copies of records provided to DFEH. If a comprehensive
summary is prepared by the University pursuant to paragraph B-3 of
this Agreement, the University shall provide the comprehensive
summary immediately upon completion of the comprehensive summary.
D-2. If DFEH determines that copies of existing University personnel
records of non-charging parties which are not confidential academic
review records are necessary for the conduct of the investigation
for purposes of comparison subsequent to DFEH's review of those
records on site pursuant to paragraph B-2 of this Agreement, DFEH
shall explain in writing the basis for its request to the Academic
Vice Chancellor of the affected campus. The University will
provide the requested records within ten (10) days of DFEH's
request. If comprehensive summaries of confidential academic
review records exist at the time of DFEH's request, they shall be
included in the copies of records provided to DFEH. If
comprehensive summaries are prepared by the University pursuant
to paragraph B-4 of the Agreement, the University shall provide
the comprehensive summaries immediately upon completion of the
comprehensive summaries.
D-3. If DFEH determines that removal of copies of confidential academic
review records relating to the charging party or to non-charging
parties which have been reviewed pursuant to paragraphs B-3 and
B-4 of this Agreement is necessary to the conduct of its
investigation, the District or Regional Administrator shall
provide a written statement to the University why removal of
copies is necessary to the conduct of the investigation.
Within ten (10) days of receipt of DFEH's statement, the Vice
Chancellor or his designee shall consult with the District or
Regional Administrator. Nothing in this paragraph shall be
interpreted to prevent DFEH and University from modifying the
scope of the original request by agreement during the required
consultation.
If the District or Regional Administrator so consults and affirms
the need, the University agrees to provide copies of the requested
records of the charging party and comparable non-charging parties
as redacted pursuant to paragraphs B-3 and B-4 of this Agreement
within five (5) working days.
If the case is forwarded to the DFEH Legal Unit for review for
accusation, the University agrees to provide copies of the
unredacted records requested within five (5) working days.
D-4. DFEH agrees to the following security measures for copies of
records provided pursuant to section D-3:
a. Copies provided by the University will not be duplicated in
any form. DFEH will maintain only the copy provided by the
University.
b. All copies provided by the University will be maintained in a
segregated, locked file.
c. Only consultants, attorneys, and DFEH employees or agents with a
specific need to know shall have access to the copies of records
provided pursuant to this section.
E. The sequence of access to inspection and/or removal of the academic
review records, as described above in sections B, C and D, may be
modified in any individual case upon agreement of both parties to this
Agreement.
F. Pursuant to this Agreement, the parties hereto shall abide by the
following conditions:
F-1. DFEH shall regard the notes taken by any DFEH consultant during the
course of a review concerning academic review records and
information deemed confidential by the University as well as any
conversations concerning those records and information and/or any
notes taken about academic review records and information deemed
confidential by the University and provided to DFEH to be provided
under a promise of confidentiality, and such records information
and notes shall be deemed to be received by DFEH as confidential
pursuant to, but not limited to, Government Code section 12932,
subdivision (b) and DFEH Field Operations Directive No. 38
(6/16/83).
F-2. DFEH shall not release or otherwise disclose records and
information provided under a promise of confidentiality or any
notes or records relating to such records and information or to
conversations concerning such records and information to any
person or party requesting to inspect or copy such, except as
follows. DFEH agrees that all records, information, and notes or
copies thereof obtained pursuant to this Agreement with a promise
of confidentiality and/or deemed confidential by the University
and provided to DFEH and which are maintained by DFEH during an
investigation are "confidential" as defined by Civil Code section
1798.3, subdivision (a)(4) and are therefore not disclosable to
the complainant or third parties during a pending investigation,
unless DFEH is ordered to do so by a court of competent
jurisdiction. DFEH agrees not to disclose any University academic
review information received by DFEH and provided under a
promise of confidentiality or notes about such information or notes
about conversations concerning such information that remain in
DFEH's possession except under the terms of Civil Code section
1798.38. In response to a request for confidential academic
review information by the subject of that information, DFEH will
provide only the comprehensive summary concerning the subject
provided to DFEH pursuant to the terms of this Agreement, unless
DFEH is ordered to do so by a court of competent jurisdiction.
F-3. If DFEH officially ends the investigation of any complaint filed
against the University without issuing an accusation, DFEH shall
forthwith return to the University all records containing personal
and confidential information about all parties including notes
relating to said records and information received by DFEH for
purposes of its investigation of said complaint pursuant to the
terms of this Agreement as well as any copies thereof. The
University agrees to retain such records and notes for a period of
seven (7) years after return.
F-4. If DFEH determines that an accusation is warranted, DFEH may,
notwithstanding the foregoing provisions, use records designated
hereunder as confidential, as well as the matter contained therein,
in the accusation and subsequent prosecution of the case. Prior
to introducing any of such records into evidence before the Fair
Employment and Housing Commission, DFEH shall provide the
University with the opportunity to seek a protective order from
the Commission. If the Commission denies the protective order,
the University shall retain its right to seek a protective order
from the appropriate court of law.
F-5. DFEH agrees to give the University adequate notice of any subpoena
or deposition of a confidential reviewer whose name was revealed
pursuant to section B-6 of this Agreement to enable the University
to seek a protective order.
G. Any discovery issues not specifically covered by the terms of this
Agreement are outside the purview of this Agreement.
H. This Agreement is binding on the whole University system and all
employees and agents of DFEH.
FOR THE DEPARTMENT OF FAIR FOR THE UNIVERSITY:
EMPLOYMENT AND HOUSING:
Mark Guerra James S. Albertson
Director, DFEH Associate Vice President
Academic Affairs
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