Sexual Harassment Investigations and Open Records Requests: How to Control the Narrative

By April Philley

Eichelbaum Wardell Hansen Powell & Muñoz, P.C.

Whenever rumors of sexual harassment start to circulate, open records requests are sure to follow. The best way to control the narrative is to always create an adequate summary of any sexual harassment investigation as soon as the investigation is concluded.

In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.—El Paso 1992, writ denied), the appeals court addressed the applicability of the common-law privacy doctrine to files of a sexual harassment investigation. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held “the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released.” Id. 

Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released under Ellen, along with the statement of the accused, but the identities of the victims and witnesses of the alleged sexual harassment must be redacted, and their detailed statements must be withheld from disclosure. See Open Records Decision Nos. 393 (1983), 339 (1982). However, when no adequate summary exists, detailed statements regarding the allegations must be released, but the identities of victims and witnesses must still be redacted from the statements (after securing an opinion from the Attorney General). In either case, the identity of the individual accused of sexual harassment is not protected from public disclosure because common-law privacy does not protect information about a public employee's alleged misconduct on the job or complaints made about a public employee's job performance. See Open Records Decision Nos. 438 (1986), 405 (1983), 230 (1979), 219 (1978).  If the accused employee is disciplined as a result of the investigation, however, the record of discipline is protected from release because it is considered an “evaluation” and it is confidential by law. You must also get an opinion from the Attorney General to withhold discipline documents.

In other words, if you do not have an adequate summary of the sexual harassment investigation written prior to any open records requests, you will likely have to release far more of the investigative files than you’d prefer. Habitually including summaries in your files means that you won’t be caught off guard (remember that information created after an open records request is received is not responsive to that request, so you can’t write a summary after you receive a request and still take advantage of this doctrine).

Summaries are quick to write, as they only need to be a paragraph or two, but easy to overlook; we recommend including a section in your investigation forms titled “Summary” to prompt the investigator to include one. The value of creating one far outweighs the inconvenience.

Upcoming Trainings

Blue Jean Workshop: Legal Update for Administrators

September–October 2019

For more information and to register online, click here.

Legal Issues for School Secretaries

September–October 2019

For more information and to register online, click here.

Tech Wars: The IT Force Awakens

September 25, 2019

For more information and to register online, click here.

PIOs: Powerful Information Officers Webinar
Is Your Public Information Officer Ready for SB 944?

September–October 2019

For more information and to register online, click here.

Title IX Administrator Conference

October 2019

For more information and to register online, click here.

Construction Procurement
Episode I: A Bid to Survive – The Rise of the Procurist

October 8, 2019

For more information and to register online, click here.

Construction Phase and Beyond

Episode III: Operation Build

October 29, 2019

For more information and to register online, click here.

On the Front Lines: Legal Issues Confronting Superintendent Secretaries Webinar

November 2019

For more information and to register online, click here.

Materials

Trustee Manual – 2019 Updated Edition

For more information and to purchase online, click here.

Conducting Effective Investigations Manual (Revised 2019)

For more information and to purchase online, click here.

Come see us at TASA TASB – Booth 616!