California First Amendment Coalition v. Superior Court

• Decision Date: 09 October 1998
• Docket Number: No. C024109,C024109
• Citation: 78 Cal.Rptr.2d 847,67 Cal.App.4th 159
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 7718, 98 Daily Journal D.A.R. 10,696 CALIFORNIA FIRST AMENDMENT COALITION, Petitioner, v. SUPERIOR COURT, Sacramento County, Respondent; Pete Wilson, as Governor, etc., Real Party in Interest.

Page 847

78 Cal.Rptr.2d 847

67 Cal.App.4th 159, 98 Cal. Daily Op. Serv. 7718,

98 Daily Journal D.A.R. 10,696

CALIFORNIA FIRST AMENDMENT COALITION, Petitioner, v. SUPERIOR COURT, Sacramento County, Respondent Pete Wilson, as Governor, etc., Real Party in Interest.

No. C024109.

Court of Appeal, Third District, California.

Oct. 9, 1998.

Review Denied Dec. 22, 1998. ^*

Law Offices of Skjerven, Morrill, MacPherson, Franklin & Friel, Edward P. Davis, Jr., James M. Chadwick, San Jose, for Petitioner.

No appearance for Respondent.

Daniel E. Lungren, Attorney General, Linda A. Cabatic, Senior Assistant Attorney General, and Ted Prim, Deputy Attorney General, for Real Party in Interest.

RAYE, Associate Justice.

This case requires us to examine the delicate balance in a democracy between knowledge and power, accountability and quality decision making. The issue arises in the midst of conflict that frequently results when a government agency denies access to documents desired by the press. The California First Amendment Coalition (CFAC) seeks access to the documents, invoking the statutory imperative that "access to information concerning the conduct of the people's business is a fundamental and necessary right" (Gov.Code, § 6250) ¹ and stressing the abhorrence of "government by secrecy" reflected in numerous cases. The Attorney General, as counsel for the Governor, reminds us that while open government should be the norm, it is not an absolute; government must maintain some measure of secrecy to be effective.

The narrow issue before us is whether the California Public Records Act (§ 6250 et seq.) compels the Governor to disclose the names and qualifications of applicants for a temporary appointment to a local Board of Supervisors, an appointment necessitated by the death of an elected supervisor. Governor Pete Wilson denied CFAC's request for disclosure of the applicants' names, claiming their applications are exempt from disclosure as correspondence (§ 6254, subd. (1)) and asserting a deliberative process privilege (§ 6255; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240). Acceding to the Governor's position, the trial court denied CFAC's petition for a writ of mandate compelling disclosure. We shall affirm.

FACTS AND PROCEDURAL BACKGROUND

A member of the Plumas County Board of Supervisors died on September 5, 1995. Governor Pete Wilson was charged with filling the vacancy. (§ 25060.) On October 16, 1995, CFAC requested the Governor to disclose "any document containing the names of those who have applied for the position." The Governor denied the request on October 27, asserting the request was ambiguous and sought information protected from disclosure under Government Code section 6254, subdivisions (c) and (k), and section 6255. Subsequently, on November 29, the Governor made an appointment to fill the vacancy.

CFAC filed a petition for a writ of mandate on February 15, 1996. In his opposition, the Governor repeated the grounds asserted in his earlier letter denying the request and advanced an additional basis, the exemption for correspondence to the Governor, set further in section 6254, subdivision (1).

In support of his opposition, the Governor submitted declarations of his appointments secretary and her assistant. According to the appointments secretary, the consideration of individuals for a Governor's appointment typically begins with a letter from the prospective appointee to the Governor's The trial court considered the request as embracing two categories of documents: 1) written applications for appointment submitted by the applicants; and 2) written materials concerning the suitability of the applicant. In its written ruling the court concluded the first category was exempt from disclosure under the correspondence exemption set forth in Government Code section 6254, subdivision (1), and determined the second category constituted "executive communications" exempt from disclosure under Government Code section 6255. The court entered judgment in favor of the Governor. CFAC thereupon timely filed the present petition for writ of mandate, requesting this court to reverse the judgment and direct the trial court to issue a writ of mandate compelling the Governor to provide it with records containing the names of applicants for the vacancy including information submitted by the applicant as documenting the applicant's fitness for the position.

                appointments secretary requesting an application form.  The appointments secretary replies by letter enclosing the application form.  Following this exchange of correspondence, an appointment file is opened, which becomes the repository for the application form, letters of recommendation, interviews and notes from staff members.  The files are "maintained in the strictest confidence."   Names of applicants "are kept confidential in and outside the office, in part, to encourage qualified applicants to seek consideration."   The policy of confidentiality has obtained during the last four gubernatorial administrations at least.  No additional evidence was offered
                

DISCUSSION

I

We first consider the Governor's assertion that CFAC's request is excessively vague and overbroad. Citing the decisional requirement of a "specific and focused request," (Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 481, 23 Cal.Rptr.2d 412) the Governor complains that CFAC's request lacks the required focus and is a "model of ambiguity," thereby justifying its denial.

Unquestionably, public records must be described clearly enough to permit the agency to determine whether writings of the type described in the request are under its control. Section 6257 compels an agency to provide a copy of non-exempt records upon a request "which reasonably describes an identifiable record, or information produced therefrom...." However, the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought. Thus, writings may be described by their content. The agency must then determine whether it has such writings under its control and the applicability of any exemption. An agency is thus obliged to search for records based on criteria set forth in the search request. ²

The claim of overbreadth raises a separate issue. A clearly framed request which requires an agency to search an enormous volume of data for a "needle in the haystack" or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 186 Cal.Rptr. 235, 651 P.2d 822.) Records requests, however, inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort. (State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1186, 13 Cal.Rptr.2d 342.) ³

CFAC's request is neither fatally vague nor overbroad. Reasonably construed it sought the production of all documents containing information regarding applicants for appointment to the vacant county supervisor's office including, specifically, "information submitted by the applicant as documenting his or her fitness for the position." ⁴ True, taken literally, a request for "any document containing the names of those who have applied for the position" could be construed to include telephone directories, rolodex entries and a host of similar writings. However, such a construction would not be reasonable in light of the clear purpose of the request as explained in CFAC's three page letter. There is no indication the Governor was perplexed. In his opposition to CFAC's petition, he describes the information requested: "the names of applicants considered by the Governor in filling a vacancy on the Plumas County Board of Supervisors (and their application forms)." Feigned confusion based on a literal interpretation of the request is not grounds for denial. The only significant uncertainty presented by CFAC's request was whether it sought not only information provided by applicants (the applications and associated letters) but also written assessments of the applicants prepared by the Governor's staff and others. The Governor clearly intended to deny access to both categories of information. A clarification of the request would not have affected that outcome.

II

As clarified in the trial court, CFAC seeks the applications of persons who sought appointment to the vacant Plumas County Supervisor office. ⁵ The Governor acknowledges the requested documents are public records. ⁶ Accordingly, the Act mandates access to them unless they fall within one or more categories of exempt records. Two general exceptions to the policy of disclosure are set forth in the Act. Section 6254 enumerates specific categories of exempt records, while section 6255 "establishes a catch-all exception that permits the government to withhold a record if it can demonstrate that 'on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.' " (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 652, 230 Cal.Rptr. 362, 725 P.2d 470, original emphasis.) In considering claims for exemption, we are guided by the general principle that "exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed." (Rogers v. Superior Court, supra, 19 Cal.App.4th at p. 476, 23 Cal.Rptr.2d 412.) The Governor claims, and the trial court determined, that the requested documents constitute correspondence within the meaning of section 6254, subdivision (1) and are protected by the deliberative process privilege, an exemption recognized by the Supreme Court based on the language of section 6255. We consider each claim in...