A Santa Monica math teacher lost a lawsuit in a California appeals court to keep a sexual harassment complaint against him private.

The court found substantial public interest in the release of details of the investigation into a parent’s charge that the teacher sexually harassed his thirteen-year-old daughter. The charge was not fully substantiated. -db

From the Metropolitan News-Enterprise, January 25, 2012, by Kenneth Ofgang.

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A Mississippi high school senior is suing his school administration in federal court for suspending him for a rap song he wrote off campus in his free time and posted on Facebook.

The song criticized two coaches he observed who allegedly flirted with female students and contacted intimate  body parts of the students. The senior was sentenced to seven days of suspension and five weeks of alternate school. -db

From Courthouse News Service, February 28, 2011, by Tracey Dalzell Walsh.

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In an opinion piece in Mother Jones, Mac McClelland writes that the dangers women face covering volatile events in distant lands have for various reasons been neglected. The Lara Logan sexual assault in Egypt is but the latest of a number of frightening incidents.

McClelland supports current efforts to include a section on sexual harassment and assault in the Committee to Protect Journalist’s “Journalist Safety Guide.” -db

From Mother Jones, February 15, 2011, by Mac McClelland.

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The American Civil Liberties Union and a service women’s advocacy group is suing the Department of Defense for records of sexual assault and harassment in the armed forces in a campaign to get the government to provide recourse and improved benefits for victims. -db

American Civil Liberties Union
Press Release
December 13, 2010

NEW HAVEN, CT – The Service Women’s Action Network (SWAN), the American Civil Liberties Union and the ACLU of Connecticut filed a lawsuit today with the U.S. District Court in New Haven, Connecticut against the Department of Defense and Department of Veterans Affairs for their failure to respond to Freedom of Information Act requests seeking government records documenting incidents of rape, sexual assault and sexual harassment in the military.

Tens of thousands of service members each year are estimated to have experienced some form of military sexual trauma (MST). These acts occur nearly twice as often within military ranks as they do within civilian society.

“The government’s refusal to even take the first step of providing comprehensive and accurate information about the sexual trauma inflicted upon our women and men in uniform, and the treatment and benefits MST survivors receive after service, is all too telling,” said Anuradha Bhagwati, a former Marine captain and Executive Director of SWAN. “The DOD and VA should put the interests of service members first and expose information on the extent of sexual trauma in the military to the sanitizing light of day.”

The lawsuit filed today states that the goal of the lawsuit is to “obtain the release of records on a matter of public concern, namely, the prevalence of MST within the armed services, the policies of the DOD and VA regarding MST and other related disabilities, and the nature of each agency’s response to MST.”

“The known statistics on military sexual trauma suggest that sexual abuse is all too prevalent in our military,” said Sandra Park, staff attorney with the ACLU Women’s Rights Project. “But we know that many service members who suffer from abuse are not receiving the treatment they need. The truth about the extent of this abuse and what has been done to address it must be made known.”

MST is particularly widespread among servicewomen, many of whom struggle to return to civilian life after suffering sexual assault or harassment while serving. While the number of homeless veterans has declined over the past 10 years, the number of homeless women veterans has doubled. In fact, 40 percent of homeless women veterans have been sexually assaulted while serving in the armed forces.

Survivors’ VA disability claims are often rejected because they cannot prove an initial assault or rape, even if the veteran has been diagnosed with post-traumatic stress disorder by a VA military sexual trauma counselor.

“The government is failing to care for the overwhelming number of women who so desperately need help coping with something as devastating as rape, sexual assault and harassment,” said Andrew Schneider, Executive Director of the ACLU of Connecticut. “These women have already put their lives on the line by serving their country. The least that the government can do is disclose the scope of the problem.”

Counsel on the case include William Bornstein, Taylor Asen and Michael Wishnie of the Yale Law School Veterans Legal Services Clinic; Park and Lenora Lapidus of the ACLU Women’s Rights Project; and Sandra Staub of the ACLU of Connecticut.

A copy of the lawsuit can be found at: www.aclu.org/womens-rights/swan-aclu-and-aclu-connecticut-v-department-defense-and-department-veterans-affairs-co

FAC Content Use Policy

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A California appeals court ruled that San Diego firefighter did not lose state free speech rights but suffered a hostile and abusive work environment in enduring harassment during a gay rights parade they were forced to participate in. -db

Metropolitan News-Enterprise
October 15, 2010
By Steven M. Ellis

In settling a claim by a retired police officer involving sexual harassment and disability, Atherton officials failed to make the settlement public until a month later. -DB

Q: I have learned that a city councilman was sending text messages to a city intern, asking her for a date. I would like to file a CPR request for the text messages sent from his city issued Blackberry. I’m sure they (the councilman and the city attorney) would try to argue that such a message was personal but I feel that the text was a form of sexual harassment, was improper, and was a misuse of city resources.

Are there any legal consideration that would be helpful in addressing this issue? I did submit a CPR request asking for city policy on preservation of emails, texts messages, etc. They responded that unless there are tagged as a important city record, they dump all emails after 30 days. Are there state standards for preservation? I have read of investigators getting emails and text messages from months prior, in investigations, how do they do that if the data is “dumped” in 30 day cycles?

A: Assuming that a record of the message still exists, the question becomes whether this particular message related to “the conduct of the public’s business.” Under the Public Records Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code section 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

“Writing” includes not only writings in the traditional sense, but “every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Gov’t Code section 6252(g). Information retained in an electronic format must be made available in any electronic form in which the agency keeps the information. Gov’t Code section 6253.9(a). Thus, it appears that text messages would be covered by the Act.

The requirement that a record relate to the “conduct of the public’s business” is broadly construed, and “is intended to cover every conceivable kind of record that is involved in the governmental process. … Only purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.” Assembly Comm. on Statewide Information Policy, Appendix 1 to Journal of Assembly (1970 Reg. Sess) Final Report p. 9. Arguably, the city council member’s actions could be construed as related to the “conduct of the public’s business” insofar as he was using city resources to make (possibly unwelcome) contact with other city employees, thereby disrupting the day-to-day conduct of business and potentially violating the city’s sexual harassment policy.

As you can imagine, the city might come up with a range of arguments as to why it should not have to release the council member’s text messages. Or it may attempt to invoke the “catch-all” exemption to the Public Records Act:

The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

Gov’t Code section 6255(a).

However, the use of this section by the government requires a “case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Sup. Ct., 38 Cal. 4th 1065, 1071 (2006). It could be argued that the public interest in preventing the misuse of city-issued devices, such as Blackberries, particularly in situations that could expose the city to liability — such as here for sexual harassment — outweighs any privacy interest that the city council member might cite.

The above arguments are made assuming that the text message still exists in the city’s records or on the device itself. Nothing in the Act addresses a local agency’s obligation to retain records. See 64 Op. Atty Gen. Cal. 317 (1981) (“Nothing in the Public Records Act purports to govern destruction of records … Its sole function is to provide for disclosure.”). Unfortunately, it is not always clear what destruction of records is permissible under California law. Generally, the destruction of public records is a crime unless otherwise authorized by law. California Government Code § 6200 provides, in relevant part:

“Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:

(a) Steal, remove, or secrete.

(b) Destroy, mutilate, or deface.

(c) Alter or falsify.”

blockquote>

The text message here likely would not fall under the definition of a “record … filed or deposited in any public office.” A “public record” is any document or record that may properly be kept by an officer in connection with discharge of his official duties. People v. Pearson, 111 Cal. App. 2d 9, 19 (1952).

Thus, in an odd catch-22, it could be that the record that you seek under the Public Records Act is disclosable, but has been destroyed, and under Gov’t Code section 6200, would not be construed as a “public record” for purposes of enforcing that statute.

When the San Diego Reader asked Platinum Equity – who recently purchased another newspaper in town, the San Diego Union-Tribune – the nature of the dismissal of a case of sexual harassment brought by two former employees of Platinum, the firm sent a cease-and-desist letter to the Reader, warning them not to publish the letter and of lawsuits for defamation should the newspaper even imply the firm did anything wrong. -DB

Citizen Media Law Project
Commentary
July 21, 2009
By Andrew Moshirnia

Buffets are monuments to the tyranny of choice.  When presented with a plethora of options, many people just freeze up—stopping somewhere between the crab claws and the gelato bar.  Today I found myself in a similar overwhelmed position as I read Platinum Equity’s cease-and-desist letter to the San Diego Reader. You see, there are just so many shockingly wrong aspects of this attempt to chill speech, it was hard to pick just one to harp on.

Quick recap:  Platinum Equity, a buyout firm based in Beverly Hills, recently bought the San Diego Union-Tribune.  In 2006, two former employees of Platinum sued the firm for sexual harassment, claiming that the firm “creates and tolerates a persistent, and pervasively sexually charged and hostile environment for women.” This case was eventually dismissed. The San Diego Reader, another San Diego based newspaper, had the audacity to inquire as to the nature of the dismissal – namely, was it the result of a settlement? The Reader presumably did this because it’s a, you know, newspaper, and the mistreatment of women in the workplace is typically considered news (for an example of this strange convention, see this Union- Tribune story).

Platinum took offense to this inquiry and alerted their counsel, Martin Singer, who drafted the longest cease-and-desist letter of all time, warning that if the Reader so much as implied that Platinum had “engaged in wrongdoing as alleged in those lawsuits or otherwise, [the Reader] will be exposed to substantial liability for claims including defamation.” The penultimate paragraph of the letter warned “[y]ou proceed at your peril.” Singer sent this letter with the caveat that the communiqué itself “is a confidential legal communication and is not for publication.” In fact, Singer claimed that”[a]ny publication . . . of any portion of this letter will constitute . . . a violation of the Copyright Act.”

So you see my dilemma. Should I sink my teeth into the juicy claim that the publication of a cease-and-desist letter could be a violation of copyright? Or should I enjoy the delicious irony that one newspaper is threatening to sue another newspaper over the possible gathering and publication of . . . news? Or perhaps I should spend any entire post rehashing the Streisand effect for the benefit of Platinum Equity, Sarah Palin, Tony La Russa, Shaw Printing, and every other entity that has not mastered this simple concept: bringing a defamation lawsuit only increases the amount of attention directed to your flaw.

Because I already sampled the latter choices in my previous posts, I decided to focus on the concept of the mythical “unpublishable cease-and-desist letter.” (Singer’s letter begins “Confidential Legal Notice – Not for Publication or Other Use” and I’ve always been a sucker for small caps.)

Can a party prohibit the publication or dissemination of its threatening salvos?  The answer is almost certainly no.  There is a nontrivial argument that a C&D is not original enough to qualify for copyright protection, though this argument relies more on policy than legal precedent.  More fundamentally, the publication of that letter is likely fair use.

The fair use defense looks to the purpose and character of the use, the nature of the work itself, the amount of the work used, and the effect of the use on the market value of the work. 17 U.S.C. § 107. Without descending into legal complexities which make up the 9 concentric circles of copyright hell (e.g. “Is this use transformative, productive, or complementary?”), we can speak about fair use in terms of societal interest and the interest of the copyright holder.

The Reader was acting in society’s interest (and coincidentally its own) when it published Platinum’s letter. Hosting a threat-letter-party encourages people to reflect on our laws and the issues at stake. The Ninth Circuit recognized this in Hustler v. Moral Majority, stating that “when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use.” The debate surrounding the use of legal coercion to suppress speech concerns us all and participation often calls for concrete examples.

Fair use is even stronger here because publishing the letter won’t have a significant impact on the market for Singer’s work. The Reader’s action has not lessened Singer’s share in the market for C&Ds because Internet users aren’t about to recycle a 2600+ word letter that’s tailored to this specific controversy.

So, if it is almost certain that a court would reject a copyright claim based on C&D, why do companies keep unleashing threats and using these warnings? (You’ll notice that I keep on saying almost. This case is the reason. See also Dozier’s comments on the ability to copyright cease-and-desist letters.) I think that these behemoths just don’t understand that the Internet has changed the entire economics of menace. Before the Internet, there was no recourse to a threat letter. I mean, I suppose you could try to get it published in a newspaper (sorry, had to touch on the irony of this whole Platinum debacle), but that was time consuming and unreliable. So threat letters were essentially free, as far as the sender was concerned. But now, thanks to this series of tubes, a threatened party can embarrass the aggressor by publishing the spooky missive (damn, couldn’t resist the Streisand effect either).

So, I guess there are two take-aways from this post:

If you are sent a cease-and-desist letter, you will likely be safe if you decide to publish it. (Note: none of this is legal advice. Recall that I am a law student [and a coward]. Take no confidence in what I say.)

Like most buffet goers, I am weak willed and just sneak a little bit of everything on my plate.

Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP legal intern.

Copyright 2009 Citizen Media Law Projects

The California State Assembly and Senate have paid significant sums of money to settle harassment cases in the workplace but a 1968 open-records law keeps the details of the cases secret. -DB

Los Angeles Times
July 16, 2009
By Patrick McGreevy

Reporting from Sacramento—State Senate officials have secretly approved a $70,000 legal settlement that prohibits a staffer who accused a former colleague of harassment from going public with the charges.

The payment, made last month, is the latest in a string of such settlements, most of which include confidentiality clauses that keep taxpayers in the dark about what exactly they are paying to settle and why.

The agreement, obtained by The Times through open-records laws, does not identify the staffer alleged to have engaged in misconduct or the nature of the misconduct. It demands that the accuser not “in any way publicize the terms or amount of this agreement unless required by law” and says she is to respond to questions “by stating words to the effect that ‘the matter has been resolved.’ “

Such deals raise “a serious question about using public funds to pay for silence,” said Terry Francke, general counsel for Californians Aware, a group advocating open government. “Buying the ignorance of the public with public money seems contrary to the spirit of open government. It seems a kind of betrayal of public trust.”

The $70,000 was paid to Allison Bonburg, who was a field representative for U.S. Rep. Tom McClintock when he was a GOP state senator from Thousand Oaks. McClintock, who was elected to Congress in November from a Northern California district, is not the alleged harasser, a legislative source said.

McClintock was not available for comment, according to a spokeswoman.

Senate officials would not release details from Bonburg’s complaint. Senate leader Darrell Steinberg (D-Sacramento), who has promised more transparency in government and chairs the committee that entered into the settlement with her, refused to discuss the case.

“Personnel matters are confidential,” said Steinberg spokeswoman Alicia Trost.

Lawmakers have repeatedly kept workplace misconduct claims secret, releasing only the settlement papers—and only when requests are made citing state records law. The agreements are not adopted at public meetings or included in public files, as other legislative business is.

Other government entities in California, including the city of Los Angeles, do not keep secret the details of such deals. The open-records law forbids it.

But in passing the 1968 law, the Legislature specifically exempted itself. It approved a separate Legislative Open Records Act, which broadly exempts from public disclosure “records of complaints to or investigations conducted by . . . the Legislature.”

“It’s typical of the Legislature to cut itself a special deal,” said James Chadwick, an attorney and board member for the California First Amendment Coalition. “Obviously they should be more transparent.”

The Bonburg case is one of several filed, investigated secretly and settled in the Legislature in the last two decades. Most remained confidential until the information is requested by reporters:

* In 2005, lawmakers spent nearly $50,000 to settle a staffer’s complaint of sexual harassment against then-Assemblywoman Rebecca Cohn, a Democrat from Saratoga.

* In 1998, then-Senate leader John Burton approved a $117,200 settlement of a claim by a female Senate staffer who alleged that then-Sen. Richard Polanco, a Democrat from Los Angeles, discriminated against her. Details did not emerge for two years; even senators who were on the Senate Rules Committee said they learned about it from news reports.

Burton, a San Francisco Democrat who last year settled a sexual harassment lawsuit filed against him by the head of a nonprofit foundation he created for homeless children, said at the time of the Polanco settlement that it was entered into on the advice of attorneys for the Senate.

* In 1997, the state paid a $360,000 settlement to a woman who accused then-Assemblyman Mickey Conroy of Orange of sexual harassment. A jury had earlier found Conroy, a Republican, not guilty of that charge, although it did find he had inflicted emotional distress.

* In 1995, a former Assembly employee received $59,500 to settle a complaint in which she said a top aide to former Assemblyman Rusty Areias, a San Jose Democrat, made “unwelcome sexual advances.”

* In 1993, the Assembly paid $10,000 to a secretary who complained that over a two-year period, she was the target of vulgar sexual remarks made by her boss, then-Assemblyman Trice Harvey, a Republican from Bakersfield.

Although Bonburg’s written grievance against the Senate staffer remains secret, she also filed a complaint with the California Department of Fair Employment and Housing, which is subject to the broader disclosure requirements of the Public Records Act.

“I was continuously subjected to a hostile work environment based on my perceived religion and perceived sexual orientation,” she wrote in that complaint, which was released to The Times in response to a formal request. Later, she wrote, “I was retaliated against.”

The $70,000 payment to Bonburg, in addition to being contingent on her silence, included her promise not to sue the Senate or any of its members for discrimination or harassment, according to the settlement documents.

Bonburg’s attorney, Gloria Allred, answered questions about the case by stating: “The matter has been resolved.”

Copyright 2009 Los Angeles Times