San Gabriel Tribune v. Superior Court

• Decision Date: 09 June 1983
• Citation: 192 Cal.Rptr. 415,143 Cal.App.3d 762
• Parties: SAN GABRIEL TRIBUNE, Petitioner, v. The SUPERIOR COURT OF the STATE OF CALIFORNIA, Respondent, The CITY OF WEST COVINA, et al., Real Parties in Interest. Civ. 67290.
• Court: California Court of Appeals Court of Appeals

Page 415

192 Cal.Rptr. 415

143 Cal.App.3d 762

SAN GABRIEL TRIBUNE, Petitioner, v. The SUPERIOR COURT OF the STATE OF CALIFORNIA, Respondent, The CITY OF WEST COVINA, et al., Real Parties in Interest.

Civ. 67290.

Court of Appeal, Second District, Division 1, California.

June 9, 1983.

Hearing Denied Aug. 17, 1983.

[143 Cal.App.3d 767] Kadison, Pfaelzer, Woodard, Quinn & Rossi, Richard T. Williams, John C. Funk, Lawrence A. Cox and Polly Horn, Los Angeles, for real party in interest, West Covina Disposal Company, Inc.

Colin Lennard, City Atty., City of West Covina; and Burke, Williams & Sorensen, Cheryl J. Kane, Los Angeles, and Scott F. Field, for real parties in interest, et al.

WRIT OF MANDATE

L. THAXTON HANSON, Associate Justice.

San Gabriel Tribune filed petition for writ of mandamus pursuant to Government Code section 6258, providing for injunctive relief to obtain disclosure of a public record. At issue is the propriety of the refusal by the City of West Covina, real party in interest, ("City") to disclose financial statements to the petitioner, San Gabriel Valley Tribune ("Newspaper"). Petitioner newspaper seeks access to financial statements used to evaluate a rate increase that the City granted to real party in interest, West Covina Disposal Company ("Disposal Company").

FACTUAL AND PROCEDURAL HISTORY

On August 23, 1982, the City of West Covina met publicly to discuss a proposed rate increase under an existing and exclusive contract for waste disposal with the Disposal Company. The City contracted with the Disposal Company in July 1975 to collect garbage and rubbish within the city boundaries. The City and Disposal Company had contracted with one another for this service since 1961. The duration of the contract was from July 1976 to December 31, 1985. The terms expressly provided that "the Contractor shall act as an independent contractor in the performance of the within agreement and shall not be subject to the direction of the City as to the manner in which said work is to be performed, other than inspection by the City to insure that the terms hereof are performed by the Contractor."

[143 Cal.App.3d 768] Additionally, the contract provided that either party could request a complete review of the terms of the agreement at the end of each two-year period. In the event that a proposed revision to the terms of the contract was not reached, either party could terminate the contract with six months notice. The contractor agreed to pay the City five percent of the sums it collected, in addition to any other licenses or taxes charged by the City. The contractor was charged with submitting annually on or before August 31 a certified statement of the contractor's total collections for the preceding fiscal year. A rate schedule was attached and incorporated as part of the contract. ¹

The result of the August 23, 1982, meeting was that the City approved the Disposal Company's proposed rate increase that amounted to about a 15 percent[143 Cal.App.3d 769] increase for residential customers and a 25 percent increase for commercial customers over a two year period. ²

The newspaper sent a reporter, Karen Zappe, to cover the city council meeting. According to Zappe's declaration, a packet of information containing a two-page memorandum prepared by Leonard Eliot, Assistant City Manager, was given to each council member. The memorandum recommended approval of the rate increase. The information contained in the memorandum was utilized by the council to decide on whether to grant the proposed rate increase. The memorandum referred to financial reports submitted by the Company concerning their current year of operations in support of a rate increase. ³ Zappe requested the financial information following the meeting and again on August 21, 1982. Her requests were denied.

On August 27, 1982, the newspaper made a written request to the City requesting access to the Disposal Company's 1980 and 1981 financial statements. [143 Cal.App.3d 770] The request was denied by City Manager Herbert Fast in a letter of September 3, 1981. In his letter, Fast said the denial was premised on the City's policy of reviewing rate increases on the basis of "rate of return on investment of the corporation" to determine what would be reasonable. This policy, said Fast, was adopted by the City six years past, due to his dissatisfaction with the former evaluation process of reviewing market rates charged in comparable cities. Fast referred to information that Eliot provided to the reporter--total salaries, total operating costs, significant operating centers, profit after taxes and existing and predicted rate of return. Fast said it was the City's view that the financial information was a private corporation's confidential documents obtained in confidence and therefore unavailable to the public.

On October 5, 1982, petitioner brought a petition in the superior court for an alternate writ of mandate to compel disclosure or, in the alternative, a complaint for declaratory relief. Petitioner premised its petition for disclosure of public records on both the Public Disclosure Act and the Brown Act. The proceedings were delayed until October 28, 1982, to enable respondent Disposal Company to intervene in the action. On December 2, 1982, the matter was heard and the writ was denied. The basis of the lower court's denial was that the

statements were exempted from disclosure under Government Code sections 6254(k) and 6254(n). ⁴

On February 28, 1983, this court granted an alternative writ of mandate, directing that respondent superior court either vacate its denial of the writ or show cause why a peremptory writ should not issue ordering the court to so vacate its denial.

We note that the petition for mandate filed in this court was an original proceeding, undertaken on the assumption that petitioner had no adequate remedy at law (Code Civ.Proc., § 1085). An appeal does lie from the denial by the superior court of a writ of mandate (see Code Civ.Proc., § 1110; and 5 Witkin, Cal. Procedure (2d ed. 1971), § 178, p. 3938 and 1983 Supp. at p. 347), and is ordinarily considered an adequate remedy (5 Witkin, supra, § 101, p. 3875); however, "the adequacy of another remedy, such as appeal, depends on the circumstances of the particular case, and thus a large measure of discretion to grant or deny the writ rests in the court." (5 Witkin, supra, § 92, p. 3867.) In the case at bench, the court's decision to issue the alternative writ was predicated on the need for speedy resolution of issues in which the public, particularly the citizens of the City of West Covina, have a very genuine interest (see 5 Witkin, supra, § 106, p. 3880).

[143 Cal.App.3d 771] "A writ of mandate will lie to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ..." (Code of Civ.Proc., § 1085.) Petitioner must not only show that respondent has a duty to perform but that petitioner has a substantial right to the performance of this duty. (Payne v. Superior Court (1976) 17 Cal.3d 908, 925, 132 Cal.Rptr. 405, 553 P.2d 565; 5 Witkin, Cal. Procedure (2d ed. 1971), Extraordinary Writs, § 61, p. 3838.)

Mandamus will not be granted to control the proper exercise of discretion unless the court's discretion can be exercised in only one way. (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666; 5 Witkin, supra, § 80, p. 3857.) It is unusual that a court is bound to exercise its discretion in one "right" way. (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 361, 115 Cal.Rptr. 783, 525 P.2d 687.)

When, as here, petitioner acts in the public interest "to procure the enforcement of a public duty" he need not show any legal or special interest in the result. (Green v. Obledo (1981) 29 Cal.3d 126, 144, 172 Cal.Rptr. 206, 624 P.2d 256; Hollman v. Warren (1948) 32 Cal.2d 351, 357, 196 P.2d 562.) Consequently, we review the matter presented on the merits.

ISSUES

In support of a writ of mandate, petitioner contends: (1) that the financial data in question is a public record within the meaning of section 6250; (2) that the exemption provided under section 6254(k) is inapposite because the data is not confidential information protected under either Evidence Code sections 1060 or 1040, both of which are incorporated in this exemption, and that the exemption provided under section 6254(n) is also inapposite because this exemption protects licenses and not contractors of the City; (3) that the balancing test provided under section 6255 weighs in favor of public disclosure as opposed to the Disposal Company's privacy interests; (4) that the City and Disposal Company's pursuit of a rate increase is tantamount to a waiver of any privacy interests that they may have had in the data; and (5) that petitioner is entitled to attorney's fees pursuant to Government Code Section 54960.5. We

agree with petitioner's position, as our discussion indicates

DISCUSSION

I

A. Introduction

The California Public Records Act ⁵ was enacted in 1968 to safeguard the accountability of government to the public, for secrecy is antithetical to a [143 Cal.App.3d 772] democratic system of "government of the people, by the people [and] for the people." The Act "was enacted against a 'background of legislative impatiency with secrecy in government ...' (53 Ops Cal.Atty.Gen. 136, 143 (1970)) The Legislature had long been attempting to 'formulate a workable means of minimizing secrecy in government.' (Id., at p. 140, fn. omitted.)." (American Civil Liberties Foundation v. Deukmejian (1982) 32 Cal.3d 440, 457, mod. 32 Cal.3d 866a, 186 Cal.Rptr. 235, 651 P.2d 822.) The Act replaced a number of statutes that were cumbersome to apply. This statutory disarray was not cured by the Brown Act of 1953. ⁶ (See Schaffer, et al., A Look at the California Records Act and Its Exemptions (1974) 4 Golden Gate L.Rev. 203, 212.)

The legislative...