Rogers v. Superior Court

• Decision Date: 04 September 1993
• Docket Number: No. B073586,B073586
• Citation: 19 Cal.App.4th 469,23 Cal.Rptr.2d 412
• Court: California Court of Appeals Court of Appeals
• Parties: , 21 Media L. Rep. 2234 William ROGERS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. CITY OF BURBANK et al., Real Parties in Interest.

Page 412

23 Cal.Rptr.2d 412

19 Cal.App.4th 469, 21 Media L. Rep. 2234

William ROGERS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent CITY OF BURBANK et al., Real Parties in Interest.

No. B073586.

Court of Appeal, Second District, Division 5, California.

Sept. 4, 1993.

As Modified Oct. 13, 1993.

Darlene M. Ricker, Laguna Beach, and Barbara S. Blinderman, Beverly Hills, for petitioner.

No appearance for respondent.

Joseph W. Fletcher, City Atty. (City of Burbank), Freilich, Kaufman, Fox & Sohagi, Benjamin Kaufman and Deborah J. Fox, Los Angeles, for real parties in interest.

GRIGNON, Acting Presiding Justice.

Petitioner William Rogers seeks review of an order of respondent court denying his request for disclosure of public records from real party in interest, the City of Burbank (the City) ¹ pursuant to the California Public Records Act (Gov.Code, § 6250 et seq., ² hereinafter the "Act"). He contends: (1) respondent court erred in finding that telephone numbers contained in the sought-after public records were exempt from disclosure; (2) respondent court abused its discretion in failing to award him costs and attorney fees; (3) there is no substantial evidence to support respondent court's finding that the City's responses were reasonably timely; and (4) respondent court abused its discretion in awarding costs to the City. We deny the petition in part and grant it in part.

FACTS AND PROCEDURAL HISTORY

Petitioner is a free-lance writer and columnist published under the byline "Will Rogers" in the Glendale News-Press, the Burbank Leader and the Foothill Leader. Over a six-month period, he requested from the City, and was provided, approximately 750 pages of public documents, primarily expense account records of City Council members and other City employees. One category of requests was for telephone records of calls made and received by City Council members from cellular phones and made from second telephones in home offices Petitioner filed this action for declaratory and injunctive relief, alleging several violations of the Act, including the claim that the City had provided documents which were not responsive to petitioner's request. After a court trial presented on declarations, respondent court determined that the City was not required to disclose the telephone numbers. Respondent court found that the telephone numbers were exempt from disclosure under the "deliberative process privilege" (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240), the privacy rights of the persons whose phone numbers are the subject of this case, and the privilege for confidential information set forth in Evidence Code section 1040, subdivision (a). Respondent court denied petitioner's requests for costs and attorney's fees under the Act and awarded costs to the City. Judgment was entered on February 17, 1993.

maintained by two City Council members. Petitioner also requested copies of hotel bills, including telephone calls, for City Council members and other City employees while on official business at conventions held in Las Vegas, Nevada. The City provided copies of the hotel and telephone bills, but with the telephone numbers redacted.

On March 4, 1993, we summarily denied the petition. On May 13, 1993, the Supreme Court granted review and transferred the matter to us to consider in light of section 6259, subdivision (c) and Times Mirror Co., supra. On July 26, 1993, we issued an order to show cause and heard oral argument on September 8, 1993.

By statute, respondent court's order is reviewable by way of a petition for extraordinary writ (§ 6259, subd. (c)). After conducting an independent review of respondent court's judgment and determining whether its factual findings are supported by substantial evidence, we conclude that the telephone numbers are exempt from disclosure under the deliberative process privilege. (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1336, 283 Cal.Rptr. 893, 813 P.2d 240.) In addition, we conclude respondent court's findings that disclosure was timely and petitioner was not the prevailing party are supported by substantial evidence. Accordingly, respondent court did not err in denying petitioner's requests for costs and attorney's fees. However, respondent court erred in awarding costs to the City.

DISCUSSION

General Purpose of the Act

The Act was intended to safeguard the accountability of government to the public. (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771, 192 Cal.Rptr. 415.) To this end, the Act makes public access to government records a fundamental right of citizenship: "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, ³ 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." (§ 6250.)

The California Supreme Court has addressed the competing interests of personal privacy and access to public records as follows: "Implicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. ⁴ Such access permits checks against the arbitrary exercise of official power and secrecy in the political process. However, a narrower but no less important interest is the privacy of individuals whose personal affairs are recorded in government files." (CBS, Inc. v The Act contains a number of exemptions from disclosure. Because of the strong public policy in favor of disclosure of public records, ⁵ such records must be disclosed unless they come within one or more of the categories of documents exempt from compelled disclosure. (§ 6254.) These exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed. (San Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d at p. 773, 192 Cal.Rptr. 415).

Block (1986) 42 Cal.3d 646, 651, 230 Cal.Rptr. 362, 725 P.2d 470.)

The only specific exemption which has been raised in this case is for "[r]ecords the disclosure of which is exempted or prohibited pursuant to [provisions of] federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." (§ 6254, subd. (k).) The City argued, and respondent court agreed, that this exemption precluded disclosure of the telephone records in question because their disclosure was prohibited by Evidence Code section 1040, which makes privileged "information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made." However, in addition to the specific exemptions set forth in the Act, a "catchall" exemption is also set forth in section 6255.

The "Catchall" Exemption--Section 6255

Section 6255 "provides a means by which an agency may withhold a public record which would not be exempt under any of the specific exemptions delineated in section 6254." ( CBS, Inc. v. Block, supra, 42 Cal.3d at p. 662, 230 Cal.Rptr. 362, 725 P.2d 470.) Section 6255 states: "The agency shall justify withholding 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."

The issue in this case is thus whether the City met its burden of showing that "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record."

According to petitioner, the public interest to be served by disclosure of the telephone numbers is as follows: "On several occasions, Burbank City Council members and high-level staffers have denied contact with specific individuals who are alleged to wield considerable influence in the conduct of City business. The requested telephone records will provide significant confirmation--or evidence contrary--to those claims. In either scenario, the public has a right to know whether certain individuals or interests are influencing their elected officials." In other words, petitioner's interest is not in how City Council members and other City officials are spending the City's money, but rather whether their decisions are unduly influenced by particular individuals or interest groups. ⁶

According to the City, two strong public interests are served by not making the records public: (1) the "deliberative process privilege" discussed in Times Mirror Co., supra; and (2) the privacy interests of both the city council members and the third parties whose telephone numbers would be disclosed.

Deliberative Process Privilege

In Times Mirror Co., the Los Angeles Times filed a lawsuit under the Act for injunctive and declaratory relief to obtain copies of Governor George Deukmejian's appointment calendars and schedules for the preceding five-year period. The State of California opposed the request, citing the "deliberative process privilege" (known as the "executive privilege" in federal cases construing the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552). ⁷ The deliberative process privilege protects materials reflecting deliberative or decision-making processes. (EPA v. Mink (1973) 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119.) "The key question in every case is 'whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.' " (Times Mirror Co. v. Superior Court, supra, 53 Cal.3d at p. 1342, 283 Cal.Rptr. 893, 813 P.2d 240, citing Dudman Communications v. Dept. of Air Force (D.C.Cir.1987) 815 F.2d 1565, 1568.)...