A Gawker reporter is suing the National Archives and Records Administration for information about how former President George W. Bush and his vice president, Dick Cheney tried to shape public opinion during their tenure.

The reporter is not seeking the Bush administration documents protected under law from disclosure but rather the identities of those who sought records. -db

From the Courthouse News Service, December 1, 2011, by Adam Klasfeld.

Full story

Q: Does the public have the right to inspect jail visitor sign-in logs in California? I’ve been told no, but seen court rulings in other states that lead me to think this may be inaccurate. Thank you!

A: The right to inspect jail visitor sign-in logs would come from California’s Public Records Act, which provides, generally speaking, that writings created or used by government agencies in California are presumptively open to public inspection and copying unless a specific exemption of the PRA applies.  If the “no” you refer to was in response to your request under the PRA, then the agency should have given you the basis for the denial, which would be a good place to start in evaluating the denial.

Possibly a jail would claim that disclosing records showing who has visited a particular inmate would constitute an invasion of the constitutional right to privacy sufficient to outweigh the public’s interest in reviewing such records.  Although there is considerable judicial debate in California as to the right of privacy that inmates and their visitors have in their conversations, I am not aware of any authority as to whether the fact of the visit itself should be considered confidential.

Of course, simply claiming that a privacy interest is at issue is not sufficient to justify withholding records under the PRA.  “[T]he provisions of the [PRA] represent the Legislature’s balancing of the narrower privacy interest of individuals with the public’s fundamental right to know about the conduct of public business.”  City of Santa Rosa v. Press Democrat, 187 Cal. App. 3d 1315, 1319 (1986). 

To establish exemption based on a constitutional privacy claim, an agency should be required to meet the test articulated in Hill v. National Collegiate Athletic Ass’n, 7 Cal. 4th 1 (1994).  Under Hill, the agency must establish that the privacy claimant: (1) had a legally protected privacy interest in the information at issue; (2) had a reasonable expectation of privacy in that information; and (3) would suffer a serious invasion of privacy from disclosure.  Id. at 39-40. 

It is not clear that visitors to jails or prisons or the inmates they visit have a reasonable expectation of privacy in the fact of the visit or that disclosure of that information would result in a serious invasion of privacy.

Note that whether a privacy denial is based directly on the constitutional right to privacy or in terms of the so-called “catch-all” exemption of the PRA, which permits withholding a record “by demonstrating … on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record,” the fundamental analysis should be the same.

Rulings by other states’ courts might be persuasive to a California court but would not be considered binding.  At the end of the day, California courts might reach a different result.

If you are interested in pursuing this issue and have not yet made a written request under the PRA, that might be a good place to start, as it should result in a written response providing the basis for the denial.  Additional information about making a PRA request is available on this website here: Access to records.