Withholding Information in the Public Interest
California Public Records Act:
Withholding Information in the Public Interest
Q: What is the public interest balancing test?
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.
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)
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)).
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).
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).
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).
