California Public Records Act:
Withholding Information in the Public Interest
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Q: What is the public interest balancing test?
Q: Is the public interest balancing test a permanent or
universal barrier against access to a given record?
Q: Can the reason for a request or its particular focus make a
difference in how the public interest balance is struck?
Q: When have courts found the public interest in disclosure to
be overriding?
Q: When have courts found the public interest to favor
nondisclosure?
Q: When have courts reached a qualified conclusion about the
public interest balance?
Q: What is the public interest balancing test?
A: The Act states:
Section 6255. "The agency shall justify witholding 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 making the record
public clearly outweighs the public interest served by disclosure of the record."
That is, even if no express exemption for particular information within the CPRA
applies, and no other law restricts access, Section 6255 allows an agency to withhold
information on an ad hoc basis providing it can show that the public interest is better
served by nondisclosure. This rule is often cited as an add-on to other asserted
exemptions, but by definition it is most effective when none others may apply.
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Q: Is the public interest balancing test a permanent or universal
barrier against access to a given record?
A: Not necessarily. Since Section 6255 operates only as dictated by "the facts of
the particular case", it is conceivable that certain information might be eligible
for withholding in one situation but subject to disclosure in another. For example, the
California Supreme Court held that a request for five years' worth of information from
Governor George Deukmejian's appointment calendars was barred by Section 6255, because
such a massive scrutiny would interfere with the governor's deliberative processes and
deter members of the public from conferring with him without bestowing any overrriding
benefit on the public. But that assessment of the balance of interests, the court noted,
did not necessarily mean that information from such records was categorically exempt under
all circumstances:
". . . on the present record, we conclude that the public interest in
nondisclosure clearly outweighs the public interest in disclosure. (§ 6255.) Lest there
be any misunderstanding, however, we caution that our holding does not render inviolate
the Governor's calendars and schedules or other records of the Governor's office. There
may be cases where the public interest in certain specific information contained in one or
more of the Governor's calendars is more compelling, the specific request more focused,
and the extent of the requested disclosure more limited; then, the court might properly
conclude that the public interest in nondisclosure does not clearly outweigh the public
interest in disclosure, whatever the incidental impact on the deliberative process."
-- Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991)
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Q: Can the reason for a request or its particular focus make a
difference in how the public interest balance is struck?
A: Yes. Although the California Court of Appeal two years after the Times Mirror
case found a request for disclosure of phone numbers dialed by city council members on
official business over a year's time to be likewise barred by the deliberative process
privilege, and thus by Section 6255, on facts substantially "indistinguishable"
from those in Times Mirror Co., the court suggested that a more focused request
might have been treated differently. Specifically, the court noted that there had been no
suggestion in the requester's argument to the trial court that disclosure of the telephone
numbers called might reveal a misuse of public funds -- a proposition which, if it had
been on the record for appeal, might have been greeted differently (Rogers v. Superior
Court, 19 Cal. App. 4th 469 (2d Dist. 1993)).
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Q: When have courts found the public interest in disclosure to be
overriding?
A: In the following cases, the public interest in disclosure has been found to outweigh
the public interest in nondisclosure:
Public interest in monitoring of government and how it
regulates application of dangerous pesticides outweighs applicators' proprietary interests
in spray report data filed with county, and county's anxieties that reports would not be
candid if disclosed. Uribe v. Howie, 19 Cal.App.3d 194 (4th Dist. 1971).
Public interest in monitoring of government and how it
regulates licensed collection agents outweighs government's interests in keeping
investigative information confidential, where government discloses the information to the
licensees. Black Panther Party v. Kehoe, 42 Cal.App.3d 645 (3d Dist. 1974).
Public interest in monitoring government's supervision of
public employees outweighs government's interests in protecting employee privacy, where
employee misconduct is substantial rather than trivial and is confirmed, not merely
alleged. American Federation of State, Municipal and County Employees v. Regents,
80 Cal.App.3d 913 (1st Dist. 1978).
Public interest in monitoring city's contracting for
services and regulation of contractors' fees charged to residents outweighs city's
interest in not discouraging contractors from submitting proprietary information
justifying need for rate increases. San Gabriel Tribune v. Superior Court, 143
Cal.App.3d 762 (2d Dist. 1983).
Public interest in confirming facts surrounding questioned
personnel practices outweigh's city's interest in not discouraging individuals from
applying for municipal employment, where information sought is not a matter of personal
privacy. Braun v. City of Taft, 154 Cal. App. 3d 332 (5th Dist. 1984).
Public interest in monitoring how public funds are spent
outweighs county's interest in keeping settlements confidential to discourage
unmeritorious claims. Register Division of Freedom Newspapers v. County of Orange,
158 Cal. App. 3d 893 (4th Dist. 1984).
Public interest in monitoring how sheriff exercises
discretion in issuing concealed weapons permits outweigh's sheriff's speculative concerns
that disclosure of permit applicant information would expose applicants to danger and
discourage filing of applications. CBS v. Block, 42 Cal.3d 646 (California Supreme
Court, 1986).
Public interest in monitoring effectiveness of water
rationing program outweighs water district's interest in protecting reputations of those
given preliminary citations for exceeding water allocation. New York Times Co. v.
Superior Court, 218 Cal. App. 3d 1579 (2d Dist. 1990).
Public interest in discouraging development of secret law
by taxing agency outweighs agency's interest in avoiding burden of extensive redaction of
records, especially where redaction consists mainly in removal of information that would
identify taxpayers. State Board of Equalization v. Superior Court,10 Cal.App.4th
1177 (3d Dist. 1992).
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Q: When have courts found the public interest to favor
nondisclosure?
A: In the following cases (in addition to Times Mirror Co. and Rogers,
discussed above), the public interest in nondisclosure has been found to outweigh the
public interest in disclosure:
Public interest in avoiding prejudicial publicity
concerning a prison inmate about to stand trial for murder outweighs public interest in
knowing specifics about his prison life, especially where such information is otherwise
treated as confidential. Yarish v. Nelson, 27 Cal.App.3d 893 (1st Dist. 1972).
Public interest in preventing regulated businesses from
circumventing effective compliance investigations by obtaining auditors' procedural
manuals outweighs any public interest in disclosure. Eskaton Monterey Hospital v. Myers,
134 Cal.App.3d 788 (3d Dist. 1982).
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Q: When have courts reached a qualified conclusion about the
public interest balance?
A: In the following cases the result was tentative or conditional:
Public interest in encouraging citizens to provide vital
information to government in confidence outweighs public interest in knowing how sheriff's
office conducts screening of applicants for reserve officer status, if and only if the
information sought was in fact obtained from citizens on the understanding that it would
be kept confidential. Johnson v. Winter, 127 Cal.App.3d 435 (1st Dist. 1982)
Public interest in monitoring how law enforcement agencies
maintain intelligence operations in non-criminal settings is outweighed by public interest
in avoiding undue burdens of checking and redaction with respect to documents that would
require extensive processing prior to release and would then contain little of substance;
but with respect to other documents which could be processed for release simply by
removing personal identifiers, public monitoring interest is again predominant. ACLU v.
Deukmejian, 32 Cal.3d 440 (California Supreme Court, 1982).
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