Judge: Mary H. Strobel, Case: 21STCP02031, Date: 2023-01-19 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02031    Hearing Date: January 19, 2023    Dept: 82

Mollie Vehling, v. UCLA Title IX Office, et al. Judge Mary Strobel Hearing: January 19, 2023

21STCP02031 Tentative Decision on Motion to Seal Unredacted Administrative Record

Respondent the Regents of the University of California (“Respondent”) moves to seal the unredacted administrative record “because the documents contain information that implicates the privacy interests of students and other individuals within the University community.” (Notice 1.) Petitioner Mollie Vehling (“Petitioner”) opposes the motion.

Background

Petitioner, Alan Robbins, and the “Absinthe” Show

Petitioner was employed by the University of California, Los Angeles, from September 1999 until she was terminated effective May 16, 2019. At all material times, Petitioner held the title of Director, UCLA Spirit Squad. (AR 4.) She was responsible for the overall management and direction of the Squad, and she also assisted UCLA Development Officers in managing donor relationships to raise money for the Squad. (Ibid.)

Alan Robbins, a 76-year-old former state senator, was one of the high-profile donors with whom Petitioner worked. Robbins had been indicted in the 1970s, and acquitted, for having sex with two underage minor females. Some Spirit Squad members thought he was creepy and had informed Petitioner they felt uncomfortable in his presence. (AR 4-5; Opening Writ Brief (“OB”) 8, citing record; Opposition Writ Brief 3.)

In the administrative decision upholding Petitioner’s termination (see AR 2-23), a hearing officer found that Petitioner was instructed by Associate Vice Chancellor Julie Sina in June 2018 that “Squad members were not to have contact with Alan Robbins.”1 (AR 5.) Petitioner contends that direction was not given, while Respondent contends that it was. (See OB 10-11; Oppo. 4, citing AR 454-455; 477-478; 487-488, 490-492.)

In October 2018, Robbins reached out to Petitioner to ask whether Spirit Squad members would be interested in attending a “burlesque” adult-nature show known as

“Absinthe” while they were at the Las Vegas Invitational men’s basketball tournament held on November 22-23, 2018. (OB 9, citing AR 1095-1111.) Petitioner did not accompany the Squad on this trip, but she helped arrange the Squad’s attendance at the show. (AR 6.) Some Squad members were uncomfortable at the show, both because of its content and the presence of Robbins, and left early. (AR 6-8)

Title IX Investigation

Subsequent to the Las Vegas trip, the UCLA Title IX office was notified that Squad members had experienced harassing behavior during this trip. Petitioner was placed on paid administrative leave while the matter was investigated. (AR 8.) The matter was referred to the Staff Diversity & Affirmative Action/EEO Compliance Office (“SD&C”) for an investigation of whether Petitioner violated UCLA’s Sexual Violence and Sexual Harassment Policy (“SVSH Policy”). (AR 1055.) Respondent Adriana Ovalle-Stevenson, Complaint Resolution Officer of SD&C, interviewed Petitioner and 16 witnesses and prepared a report. On March 20, 2019, after receiving comments from Petitioner on the information obtained in the investigation, Ovalle-Stevenson issued a lengthy confidential memorandum concluding that there was sufficient evidence to find Petitioner responsible for a violation of the SVSH policy. (AR 1054-1093.)

UCLA Campus Human Resources Investigates Other Alleged Misconduct of Petitioner

UCLA Campus Human Resources (“CHR”) also conducted an investigation into eligibility and scholarship violations, as well as Petitioner’s alleged violation of Sina’s no contact directive. (AR 9-63-64; 1171-1209.) On April 29, 2019, Kathleen Shiroma, Employee Relations Consultant CHR, issued her report finding that Petitioner had violated Spirit Squad participation requirements, violated financial aid requirements, and had violated the no-contact directive. (AR 10, 1171-1209.)

Termination, Administrative Appeal, and Decision Denying Appeal

Following receipt of Ovalle-Stevenson’s report and CHR’s report, UCLA decided that it would terminate Petitioner’s employment and gave her a notice of intent to terminate on April 18, 2019. Petitioner did not request to have an in-person Skelly hearing. By letter dated May 16, 2019, Petitioner was notified that she was terminated effective May 17, 2019. (AR 10-11, 1210-17.)

Petitioner timely requested review of her termination pursuant to the provisions of the University of California Policy PPSM-70, which governs complaint resolution with respect to certain professional and managerial employees. (AR 11, 2250.) The matter was processed through several “steps” and eventually an administrative hearing was held on multiple dates before hearing officer Walter F. Daugherty. (AR 11, 25-907.) On May 21, 2021, the hearing officer issued a lengthy decision finding that the termination of Petitioner did not violate university policies and denying Petitioner’s appeal. (AR 1-24.)

Writ Proceedings

On June 25, 2021, Petitioner filed a petition for writ of administrative mandate against Respondent the Regents of the University of California, as well as UCLA Title IX Office and Adriana Ovalle-Stevenson, in her official capacity as Title IX Complaint Resolution Officer.

Respondent has answered the petition.

On June 6, 2022, Petitioner filed her opening brief in support of the petition. The court has received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

On October 13, 2022, the petition came for hearing before the court. The court continued the hearing to November 29, 2022, and ordered no further briefing. The court reserved a hearing on a motion to seal for November 29, or, in the alternative to a motion to seal, ordered the parties to provide a record with student witness initials or first name, last initial. The November 29 hearing date was taken off calendar at the request of the parties. The hearing on the writ petition was subsequently continued to February 2, 2023.

On December 23, 2022, Respondent filed its motion to seal. The court has received Petitioner’s opposition, Respondent’s reply, and the unredacted record filed conditionally under seal.

The unredacted record was lodged in 17 separately sealed envelopes, making it very cumbersome for the court to review. In addition, Respondent did not separately file a public redacted record, as required by California Rules of Court, Rule 2.551(b)(5).

Analysis

“[S]ubstantive courtroom proceedings in ordinary civil cases are ‘presumptively open.’” (NBC Subsidiary (KNBC-TV), Inc. v. Sup.Ct. (1999) 20 Cal.4th 1178, 1217.) To allow sealing of the record, including redactions thereof, the court must make the necessary findings under California Rules of Court, Rules 2.550 and 2.551.

California Rules of Court, Rule 2.550 authorizes sealing when the court finds (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing of such records; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing of the arrest report is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (CRC Rule 2.550(d).) “The Court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (CRC 2.551(a).)

Student Identities

Respondent contends that sealing of student identities is required by the Family Educational Rights and Privacy Act (“FERPA”). (Mot. 4-6.)

FERPA prohibits an educational institution from receiving federal funds if it has a “policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information” unless the information “is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency.” (20 USC § 1232g(b)(2)(B).) Production pursuant to court order requires notice to be sent to individuals whose student records are disclosed so that the parent or eligible student may seek protective action. (See 34 C.F.R. § 99.31(a)(9)(ii).)

FERPA defines “education records” as including, except as provided in subparagraph (B) of section 1232g(a)(4), any “records, files, documents, and other materials” containing information “directly related to a student” and maintained by an educational agency. (20 USC § 1232g(a)(4)(A)).) Subparagraph (B) states, inter alia, that “education records” do not include “in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person's capacity as an employee and are not available for use for any other purpose.” (20 USC § 1232g(a)(4)(B)(iii).)

FERPA defines “student” as “any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution.” (20 USC § 1232g(a)(6).)

FERPA arguably protects the names of student witnesses involved in the investigation of Petitioner. Specifically, to the extent current university students gave statements or other evidence about claims of harassment, violations of Respondent’s Sexual Violence and Sexual Harassment policy, or other personal matters, such records “directly relate” to the students. (See generally In Rhea v. District Board of Trustees (2013) 109 So.3d 851.)

Petitioner argues that “[t]he record of a discipline proceeding for a University staff member is not a student record and does not fall under FERPA.” (Oppo. 9:17-18.) While unclear from the brief, Petitioner may refer to the exception in section 1232g(a)(4)(B)(iii) for records relating exclusively to an employee. Petitioner does not sufficiently develop the argument with citation to the record, FERPA, or relevant case law. (See In Rhea, supra, at 856-858 [discussing subparagraph (B)(iii) and rejecting “any suggestion … that a record cannot relate directly both to a student and to a teacher”].)

Petitioner contends: “There is no evidence that any student whose name may be disclosed has sought protective action. None of the student witnesses in this case submitted declarations requesting to proceed by pseudonym.” (Oppo. 9.) The argument is not convincing because the court has not yet issued an order directing Respondent to lodge the unredacted record publicly.

Finally, Petitioner argues that Respondent “do not specify which names should be redacted from the Administrative Record.” (Oppo. 6:22.) Petitioner also argues that “Respondents have not identified information in the record that relates to any student witnesses’ status as a student.” (Oppo. 9:16-17.) These arguments are convincing.

In a declaration, Respondent’s attorney, Sanda McDonough, declares that the record includes “names of undergraduate students who provided detailed information about how they felt harassed and the harassment that they witnessed.” She further declares that “[d]uring the administrative hearing, two of the (former) student witnesses cried while providing testimony, showing the great sensitivity of the information at issue.” (McDonough Decl. ¶¶ 4-5 [bold italics added].) McDonough did not identify any specific student witnesses in her declaration. She also appears to refer to statements of former students.

In the motion and reply, Respondent argues, citing the record, that “some of the students within the Spirit Squad were concerned and fearful of retaliation.” (Mot. 3-4, citing AR 467:14-18, 1085, 285-286.) The record citations support, generally, that some students may have felt fear of retaliation for their statements against Petitioner. However, as Respondent points out, it appears that student witness names were already redacted from the investigation reports and related exhibits submitted in the administrative proceedings. (Mot. 2, fn. 1 and AR 1056-1204.) No sealing order from this court is required for student witness names that were redacted during the administrative proceedings.

Respondent cites to statements of one witness who apparently graduated from the university before she gave her testimony. (AR 285-286; see also AR 5 and 260 [identifying witness as former Squad member].) Respondent has not developed an argument that FERPA necessarily applies to testimony of a former student in a disciplinary proceeding against an employee at which the former student voluntarily appears and testifies. While the witness may have testified about incidents that occurred when she was student, voluntary statements of a person who is no longer a “student” may not indefinitely be protected by FERPA. Even if potentially protected by FERPA, the voluntary nature of the statements and fact they were given in a disciplinary proceeding against an employee suggest that a sealing order with respect to that former student should not be based solely on FERPA. Counsel should address that issue at the hearing.

Respondent also refers to 20 U.S.C. § 1232g(b)(6)(C)(ii), (d) of FERPA. (Mot. 6:21-22.) However, those provisions only apply to “the final results of any disciplinary proceeding conducted by such institution against the alleged perpetrator” of a crime of violence or a nonforcible sex offense (§ 1232g(b)(6)(A)) or “the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence (as that term is defined in section 16 of Title 18), or a nonforcible sex offense.” Respondent does not show that the allegations against Respondent fall within the scope of these provisions.

The court finds that FERPA provides an overriding interest that overcomes the right of public access to the identity of any persons who made statements regarding the

alleged harassing conduct when they were students. However, Respondent does not show, with record citation, that the names of any persons making those statements are not already redacted. The record is nearly 2,500 pages in length and the court cannot review the record for Respondent to make the findings required by Rule 2.550. If Respondent believes that the record contains the names of students who gave statements during the administrative proceedings, Respondent should cite to the record at the hearing.

On this record and briefing, the court does not find that FERPA, standing alone, provides an overriding interest that overcomes the right of public access to the names witnesses who were not students of Respondent when they gave their statements, including the witness who testified at AR 285-286.

Respondent also contends that sealing of student identities is required by the university’s Sexual Violence and Sexual Harassment Policy (“SVSH Policy” or “Policy”). Relatedly, Respondent contends that “maintaining confidentiality of its disciplinary proceedings is critical to the effectiveness of the University’s misconduct investigations.” (Mot. 4-6.) With respect to witnesses who gave statements while they were students, the court’s analysis of this issue is the same as set forth above with respect to FERPA. While the SVSH Policy and general confidentiality interests could support a sealing order as to witnesses who testified when they were UCLA students, Respondent does not cite to any statements of current student witnesses for which the student names were not already redacted during the administrative process.

Former Students That Testified About Claims of Sexual Harassment

Respondent contends that FERPA, the SVSH Policy, and general confidentiality interests support a sealing order for former students that gave statements in the disciplinary proceedings about sexual harassment.

In a section titled Privacy and Confidentiality, the SVSH Policy provides as follows: “The University must balance the privacy interests of people involved in a report of Prohibited Conduct against the need to gather information, ensure a fair process, and stop, prevent and remedy Prohibited Conduct. In this context, the University tries to protect people’s privacy to the extent permitted by law and University policies. The University otherwise keeps confidential the identities of parties, witnesses and those who report Prohibited Conduct, except as required by law or permitted by FERPA, and protects the privacy of personally identifiable information per all applicable state and federal privacy laws, and University policies.” (Cato Decl. Exh. A at 11 of 43.) The Policy advises witnesses “that directly related information they provide and their identities will likely be disclosed to the Complainant and Respondent.” (Id. at 19.) The Policy also advises that complainants and respondents in university discipline proceedings cannot be asked to keep information confidential and “should not be restricted from discussing the allegations or gathering evidence (provided their conduct is not Retaliation as defined in Section II), or from further disclosing information about outcomes.” (Id. at 27 (FAQ #6).)

Separate from FERPA and the SVSH Policy, a person’s right to privacy may be an overriding interest that supports a sealing order pursuant to Rule 2.550. (See In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1063 [“The right to privacy is an inalienable right guaranteed under the California Constitution, and has been acknowledged as an overriding interest.”]; Advisory Com. com., Cal. Rules of Court, rule 2.550 [“[P]rivacy interests … may constitute ‘overriding interests’” warranting sealing].)

While Respondent does not discuss the evidence in much detail, Respondent has made a sufficient showing in support of a sealing order with respect to the name of the student who testified at pages 285-286 of the record. (See Mot. 3-4, citing AR 285-286 and McDonough Decl. ¶ 4.) The testimony that Respondent cites, as well as other testimony reviewed by the court and summarized in the administrative decision (see AR 5), show that this witness testified about highly personal matters and claims of harassment against Petitioner. Whether or not FERPA applies, the former student would have some reasonable expectation of privacy in her statements about alleged harassment and related private matters that occurred when she was a UCLA student.

The administrative decision also refers to statements of several other “former Squad members” that also involved highly personal matters and claims of harassment against Petitioner. (See AR 4-5.) Respondent has not cited to the testimony of those witnesses in the record, but it appears that the confidentiality interests of those witnesses are similar to those of the student who testified at AR 285-286.

Petitioner argues that “Respondents have not identified any specific information in the record that the witnesses believed would remain confidential, nor any information in the record that a reasonable person might expect to remain confidential.” (Oppo. 8.) Relatedly, Petitioner argues that “[t]here is no promise of confidentiality in the University’s policies.” (Oppo. 8.) However, the SVSH Policy states that the University tries to protect the privacy interests of witnesses and “keeps confidential the identities of … witnesses” as permitted by law. The former student witnesses who testified about claims of sexual harassment had a reasonable expectation of the confidentiality of their testimony. Petitioner does not show that the identities of those witnesses have been disclosed publicly.

Petitioner argues that the sealing is not narrowly tailored. (Oppo. 9.) With respect to former students who testified about their claims of sexual harassment, the court disagrees. The sealing would be limited to the names of such persons and does not apply to their testimony.

The court finds that (1) There exists an overriding interest in the privacy of personal information directly related to former students who testified about sexual harassment that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing – i.e. using “Student 1, etc.” or a similar pseudonym – is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.

However, Respondent has not identified where the names of those former students or their testimony appear in the record. Respondent should do so at the hearing. Also, Respondent will need to lodge a revised redacted record, on electronic flash drive, in which a pseudonym is used for each former student that testified about alleged sexual harassment.

Former Students Who Did Not Testify About Sexual Harassment

In the opening writ briefing, Petitioner indicated that the discipline was based, in part, on a claim that she “allowed Michael Catbagan to join the Spirit Squad in violation of the Spirit Squad’s participation requirements.” (OB 14.) In its motion, Respondent has not developed any argument that FERPA, the SVSH Policy, or general confidentiality interests apply to Catbagan, who was apparently a former student when he testified. (See AR 851-852.) The SVSH Policy did not apply to the enrollment issues about which Catbagan testified. Catbagan did not testify about a highly personal matter and he did not have a reasonable expectation of privacy in his testimony. Finally, Catbagan’s name has already been disclosed in this writ proceeding. The court does not make the findings of Rule 2.550 for a sealing order with respect to Catbagan.

Employees

Respondent has presented no persuasive argument that the names of employees should be redacted. The fact that a witness gave information in an investigation with the understanding it would possibly remain confidential is insufficient to support a sealing order. (See, e.g., McNair v. NCAA (2015) 234 Cal.App.4th 25, 33 - 36.) The SVSH Policy does not guarantee privacy, but only states that the University will try to protect privacy interests to the extent permitted by law.

In reaching this conclusion, the court has considered the generalized testimony of Mohammed Cato, Title IV Director. (See Cato Decl. ¶¶ 3-9.) In addition, the court has considered that Respondent has not cited any testimony or statements of an employee that could be viewed as sensitive or highly personal. Respondent cites testimony of Chandra Bhatnagar, a UCLA employee, that certain unspecified individuals declined to serve as the “complainant” due to fear of retaliation. (Mot. 4, citing AR 196-19 and 978.) However, Respondent does not show that those persons actually testified in the proceedings. Thus, this testimony of Bhatnagar does not prove a confidentiality interest of any specific employee. Further, the fear of retaliation of one person, who is not identified, does not prove an overriding interest of any other person to seal the record. The findings under Rule 2.550 must be based on the specific facts and circumstances of each person and the testimony provided.

The court does not make the findings of Rule 2.550 for a sealing order with respect to employees.

Allan Robbins and Donor Information

In the opening writ brief and opposition, the parties indicate that the allegations that Petitioner violated the SVSH Policy were based substantially on Petitioner’s alleged

failure to protect students from alleged sexual harassment of Alan Robbins, a major UCLA donor. The briefs disclosed that Alan Robbins, a 76-year-old former state senator, was one of the high-profile donors with whom Petitioner worked. Robbins had been indicted in the 1970s, and acquitted, for having sex with two underage minor females. Some Spirit Squad members thought he was creepy and had informed Petitioner they felt uncomfortable in his presence. (AR 4-5; OB 8, citing record; Opposition Writ Brief 3.) In the motion to seal, Respondent has developed no argument that the findings under Rule 2.550 can be made with respect to Robbins.

In her declaration, attorney McDonough states that the record includes “donor information,” without elaborating. (McDonough Decl. ¶ 4.) In the motion, Respondent does not describe this donor information or cite to the record. Accordingly, Respondent does not meet its burden to prove that any donor information should be sealed.

The court does not make the findings of Rule 2.550 for a sealing order with respect to Allan Robbins and “donor information.”

Personal Contact Information

In her declaration, attorney McDonough states that the record includes “personal contact information.” (McDonough Decl. ¶ 4.) While Respondent does not cite to the record, Petitioner has made no argument against a sealing order with respect to personal contact information.

The court makes all findings required by Rule 2.550 for a sealing order with respect to personal contact information.

Photo at AR 1316

Respondent identifies a photo at AR 1316, which Respondent describes as “media evidence showing students’ faces.” (Mot. 7.) Respondent cites no evidence concerning the nature, context, or relevance of this photo. Petitioner does not respond in her opposition. While the photo appears to show student faces neither side has presented any evidence the photo has relevance to the administrative decision. If neither side will rely on the photo as part of its written or oral argument, the parties may agree to redact the photo without the need for a sealing order. The parties should address this at the hearing.

Conclusion

The motion is GRANTED IN PART and DENIED IN PART, as specified above.

Respondent has not shown, with record citation, that the unredacted record discloses the identities of any persons who gave statements while they were UCLA students. Respondent is invited to further address that issue at the hearing.

The court finds that (1) There exists an overriding interest in the privacy of personal information directly related to former students that testified about sexual

harassment that overcomes the right of public access to the record, including the witness that testified at AR 285-286; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing – i.e. using “Student 1, etc.” or a similar pseudonym – is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.

Respondent has not identified the names of former student witnesses in the record or their testimony. Respondent should do so at the hearing. Also, Respondent will need to lodge a revised redacted record, on electronic flash drive, in which a pseudonym is used for each former student that testified about alleged sexual harassment.

The court makes all findings required by Rule 2.550 for a sealing order with respect to personal contact information. That information may be redacted from the record.

The court will hear further argument regarding the photograph of student faces.

The motion is DENIED in all other respects, including with respect to Michael Catbagan, Allan Robbins, “donor information,” and all names of employees that Respondent seeks to redact.

1 The name “Alan Robbins” is redacted from the electronic record lodged with the court, but Robbins’ identity was disclosed in Petitioner’s opening brief and Respondent’s opposition brief, which were publicly filed.