Braun v. City of Taft

• Decision Date: 10 April 1984
• Citation: 154 Cal.App.3d 332,201 Cal.Rptr. 654
• Court: California Court of Appeals
• Parties: Donald BRAUN, Plaintiff and Appellant, v. CITY OF TAFT et al., Defendants and Appellants, George POLSTON, Real Party in Interest. Civ. 7273/F000518.

Page 654

201 Cal.Rptr. 654

154 Cal.App.3d 332

Donald BRAUN, Plaintiff and Appellant, v.CITY OF TAFT et al., Defendants and AppellantsGeorge POLSTON, Real Party in Interest.

Civ. 7273/F000518.

Court of Appeal, Fifth District, California.

April 10, 1984.

Hearing Denied June 20, 1984.

[154 Cal.App.3d 338] Silver & Kreisler, Silver, Kreisler, Goldwasser & Shaeffer and George W. Shaeffer, Jr., Newport Beach, for plaintiff and appellant.

Rex R. Mull, Edwin W. Wilson and Andrew R. Haut, Bakersfield, for defendants and appellants.

No appearance for real party in interest.

OPINION

ANDREEN, Associate Justice.

PlaintiffDonald Braun(Braun) appealed from a judgment denying him attorney fees.DefendantCity of Taft(City) cross-appealed.We affirm.

I.FACTUAL BACKGROUND

Braun was a duly elected councilman for City.As such, he investigated a perceived irregularity in the appointment of real party in interest George Polston(Polston) as transit administrator.The city manager would neither admit nor deny the appointment, so Braun requested from a city employee a copy of Polston's salary card, which showed that Polston had been so appointed on June 25, 1979.Later, Braun requested copies of a letter dated June 25, 1979, which appointed Polston to the position of transit administrator, and a letter dated June 29, 1979, rescinding the appointment and reinstating Polston as a firefighter.Although he was permitted to review the Polston personnel file, which contained the two letters, Braun was denied copies of the letters.(He had, on his own, previously made a copy of the face side of the salary card.)He also, once again, saw the salary card, which had been modified by whiting out the appointment as transit administrator and the word "firefighter" was printed over the whited out portion.The mentioned documents are set forth in the appendix.

Braun displayed the face side of the salary card and the two letters to a member of the press.He did not reveal the remainder of Polston's personnel file.

Deeming himself aggrieved, Polston filed a grievance against Braun charging "unwarranted invasion of the privacy of my personnel file."Pursuant to personnel procedures, this was heard before the city council.During the city council proceeding, Braun requested copies of the letters and salary card.The request was denied.He also requested a ruling as to whether his disclosure of the documents constituted an unwarranted invasion of Polston's privacy.The council refused to consider this matter.

After the close of the hearing, the city council enacted a resolution which censured Braun for disclosing the letters and salary card.

II.PLEADINGS AND PROCEDURE

Braun filed the instant action in superior court.In the first cause of action, he alleged his censure and requested a review of whether the documents are exempt from disclosure under the California Public Records Act(Gov.Code, § 6250 et seq.).¹He sought a writ of mandate pursuant to Code of Civil Procedure section 1094.5 commanding City to set aside its censure action.

The second cause of action is not before us, as a demurrer was sustained and Braun did not amend; no party makes an issue of that ruling on appeal.

The third cause of action was for declaratory relief, and requested a declaration that the documents are public records open to inspection and available for copying.

As to both the first and third causes of action, he requested reasonable attorney fees pursuant to the provisions of section 6259.

The matter came before the court on an order to show cause, evidence was taken and the court ruled that the letters and the face side of the salary card were public records and were not confidential personnel records.The court also ruled that Braun was entitled to copies of same.The matter was remanded to the city council to reconsider its decision.The request for attorney fees was denied.

III.PUBLIC RECORDS

Section 6252, subdivision (d) defines public records within the meaning of the California Public Records Act: " 'Public records' includes 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."

The mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty it is a public record.(San Gabriel Tribune v. Superior Court(1983)143 Cal.App.3d 762, 774, 192 Cal.Rptr. 415.)The court in San Gabriel Tribune included in its discussion of what is a public record the following:

" ' "This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed.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 Committee on Statewide Information Policy California Public Records Act of 1968. 1 Appendix to Journal of Assembly 7, Reg.Sess. (1970), see also53 Ops.Cal.Atty.Gen. 136, 140-143(1970).'(58 Ops.Cal.Atty.Gen. 629, 633-634(1975).)"

The two letters and the personnel card are public records.They clearly related to the conduct of the City of Taft's business.

Unless the letters and the card were exempt (§ 6254), or the City of Taft can show justification for not disclosing them (§ 6255), then the City must make these records accessible to the public.(§ 6253.)

IV.POLSTON CRIMINALITY

The court took judicial notice of a criminal complaint and disposition regarding Polston.The complaint charged Polston with embezzlement (Pen.Code, § 504) and grand theft (Pen.Code, § 487, subd. (1)) from the Taft Area Transit District.It was alleged that these acts occurred between October 1, 1979, and August 31, 1980.(This was two months after Braun's censure hearing.)Polston pleaded guilty to the grand theft (Pen.Code, § 487, subd. (1)) and the embezzlement count (Pen.Code, § 504) was dismissed.

City contends that it was error for the court to take judicial notice of the criminal complaint and disposition regarding Polston.Citing Trust v. Arden Farms Co.(1958)50 Cal.2d 217, 224, 324 P.2d 583, City analogizes the rule set forth in Trust with the present case.In Trustthe court said "It is the general rule that evidence of subsequent accidents has no probative tendency to show that a defendant might reasonably have anticipated the previous accident, and therefore such evidence is inadmissible."City says "the subsequent crime and conviction of real party in interest [Polston] has no probative tendency to show that the City Manager might reasonably have concluded that the appointment was premature, and therefore such evidence should be inadmissible."

Whether or not the analogy to Trust is appropriate, we can find no legitimate purpose for this evidence.However, this was a court, not jury, trial and the issue of whether the disclosure of the records was warranted could not have been affected by events occurring several months after the operative facts of this case.A trial judge would certainly understand this.Therefore, the error is harmless.

V.SECTION 6254, SUBDIVISION (c) EXEMPTION

Section 6254 exempts several types of records from disclosure.Subdivision (c) exempts "Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy."

City contends that section 6254, subdivision (c) applies to the three documents and exempts them from disclosure.City contends that since this exemption says "files" that the Legislature intended to exempt the entire file.Thus, selective disclosure of certain documents would not be allowed, i.e., it is all or nothing.In view of section 6250 which states that "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state" and the policy favoring disclosure of public records (Cook v. Craig(1976)55 Cal.App.3d 773, 781, 127 Cal.Rptr. 712), it is unlikely that the Legislature intended an all or nothing approach.Statutes should be interpreted so as to be consistent with the legislative purpose.(Select Base Materials v. Board of Equal.(1959)51 Cal.2d 640, 645, 335 P.2d 672.)

Whether a disclosure of records is warranted or unwarranted was a question of fact for the trial court to determine by looking at the attendant circumstances.In order to find an abuse of discretion, it would be necessary to find that the decision was not supported by substantial evidence.

Implicit in the trial court's decision that the records were public and that Braun was entitled to copies of them is a finding that the documents were not exempt under section 6254, subdivision (c) because their disclosure did not constitute an unwarranted invasion of privacy.

City contends that disclosure of the letters appointing then rescinding Polston to the post of transit administrator would cause him embarrassment.City also contends that disclosure of the information on the front page of the salary card (name, address, home phone number, age, credit union number, leave of absence, salary, etc.) would expose Polston to harassment at home and over the phone.

The California Public Records Act(§ 6250 et seq.) was modeled after the 1967 federal Freedom of Information Act.Since the acts are so similar, California courts have used federal law to construe the California act.(San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d 762, 777, 192 Cal.Rptr. 415.)Both the federal...