A recent ruling from an appellate court in California finds that state officials (including those employed by police agencies, schools, etc.) cannot be sued for damages for violating privacy, even under the most egregious circumstances.

The case was reported in December 2007, and it should frighten students and teachers employed by public school districts.

A teacher employed by a school district sued the district and its joint insurance organization that administers workers’ compensation claims. She had suffered a back injury at work, and, in June of 2003, she underwent disc replacement surgery.

Subsequently, in October 2003, she was married, while on disability leave. Little did she know, the school district had hired Eye-Con Investigations to surreptitiously attend her wedding in order to videotape her.

It is not unusual for insurers to conduct investigations into whether a claim is fraudulent. The courts give employers and insurers lots of leeway to conduct investigations into such claims. However, in this case, there was no basis for suspecting the teacher had filed a fraudulent claim. In fact, having undergone disc replacement surgery, it should have been quite obvious that her claim was legitimate.

Nevertheless, on the day of the wedding, an employee from Eye-Con misrepresented himself as an invited guest and videotaped the ceremony and the reception, held at the Victorian Pitkin-Conrow House in Arroyo Grande, which the teacher had rented for her exclusive use.

Further, on the morning after the wedding, the investigator used a telephoto lens to videotape the teacher and her husband while they sunbathed on the second floor balcony of their rented room at the Cliffs Resort. He also videotaped the honeymooners as they left the hotel, and he followed them on a trip through Cambria, California.

The investigation revealed nothing inconsistent with the teacher’s claimed injuries/disabilities, and no criminal or administrative actions were brought against her.

When the teacher discovered she had been videotaped, she sued the district for various actions constituting invasion of privacy. Under California law, individuals can sue for invasion of privacy for “intrusive” actions that would be highly offensive to reasonable persons.

But the district claimed immunity from liability for anything, including “invasions of privacy.” It claimed that California law provides immunity from damages for any action in connection with an investigation of any kind of possible wrongdoing.

The court agreed, noting that, provided such conduct is within the course and scope of the job, “even if [the public employee acted] maliciously and without probable cause,” the public entity is immune from liability. In addition, the court concluded that the state provides such immunity, so that public employees, such as police officers, investigators, etc., can perform their duties without the threat of “harassment” through civil suits.

The court found that the California right to privacy, even if it applies, does not override governmental immunity and doesn’t allow for recovery of damages, just injunctive relief. This simply means that, after the fact, a person subjected to such an investigation can go to court to get an order prohibiting it from happening again.

The decision is dangerous on many levels.

It allows school districts to go on fishing expeditions into their students’ and teachers’ private lives, discovering what medications they use or where they go on their leisure time. It also allows school districts to investigate students’ and teachers’ sexual activity, so long as it can justify doing so on “disciplinary” grounds.

In terms of the police, the possibilities are equally frightening: Could your new partner be an undercover cop investigating medical marijuana use and using you to find evidence?

Unless the California Supreme Court or the Legislature intervenes, Californians have, for all practical purposes, lost their privacy rights. Most people understand that public agencies should be able to conduct investigations, but there must be at least some modicum of reason to suspect that the subject has committed an infringement of law. After all, our Constitution requires that police secure a warrant based upon probable cause before they are allowed to search private property.

The Legislature needs to create a specific exception to the immunity statute (Government Code 821.6), disallowing such immunity when an investigation is deemed arbitrary, capricious, or is engaged in for purposes of harassment.