WILLIAMS v. DAILY PRESS DIVISION OF FREEDOM NEWSPAPERS INC

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Court of Appeal, Fourth District, Division 2, California.

Dick WILLIAMS, as Sheriff, etc., Petitioner, v. SUPERIOR COURT, San Bernardino County, Respondent. DAILY PRESS DIVISION OF FREEDOM NEWSPAPERS, INC., Real Party In Interest.

No. E009855.

Decided: February 25, 1992

Cotkin, Collins & Franscell, Paul N. Paquette and Keith A. Fink, Santa Ana, for petitioner. No appearance for respondent. Helsing & Wray and Mark Wray, Santa Ana, for real party in interest.

OPINION

Petitioner Dick Williams, Sheriff of San Bernardino County (hereinafter, the Sheriff), has petitioned this court pursuant to section 6259, subdivision (c) of the Government Code for a writ of mandate/prohibition ordering respondent superior court to vacate the disclosure order it issued in this matter pursuant to the provisions of the California Public Records Act (Gov.Code, § 6250, et seq.—hereinafter, the CPRA) 1  Originally, this court summarily denied the Sheriff's petition, citing American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 186 Cal.Rptr. 235, 651 P.2d 822 and South Coast Newspapers, Inc. v. City of Oceanside (1984) 160 Cal.App.3d 261, 206 Cal.Rptr. 527.   Our Supreme Court thereafter granted review in the matter and then retransferred it to this court “with directions to vacate its order denying mandate and to issue an alternative writ to be heard before that court when the proceeding is ordered on calendar.  (American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 449, fn. 10, [186 Cal.Rptr. 235, 651 P.2d 822];  Uribe v. Howie (1971) 19 Cal.App.3d 194, 212 [96 Cal.Rptr. 493].)”   Pursuant to direction, this court issued an alternative writ and the matter is now before us.2

The essence of the dispute underlying the Sheriff's petition is a disagreement between the Sheriff, on the one hand, and real party in interest The Daily Press Division of Freedom Newspapers, Inc. (hereinafter, the Daily Press), on the other hand, as to whether certain law enforcement investigatory records and files, and information therefrom, are exempt from public disclosure under the CPRA (more specifically, under section 6254, subdivision (f)).   We conclude that the records and files here in question (together with certain of the information contained therein) enjoy a qualified exemption from disclosure and remand the matter to the trial court for further in camera proceedings under section 6259, subdivision (a) for a more precise application of the exemption qualifications and exceptions thereto.

FACTS AND PROCEDURAL BACKGROUND

On March 19, 1991, the Daily Press petitioned the trial court pursuant to sections 6258 and 6259 for an order compelling the Sheriff to disclose:

“(1) All reports and investigatory records concerning the conduct of sheriff ['s] deputies during the August 22, 1990 raid at the home and business of Daniel Morgan;  and

“(2) All recommendations for discipline against deputies involved in the Morgan raid;  and

“(3) All records of discipline imposed against any deputies involved, including documents showing the reasons for such discipline.”

On that same date, the trial court issued (in effect) an alternative writ, alternatively ordering that the documents being sought be disclosed or that the Sheriff show cause why such disclosure should not occur.   The Sheriff responded to the alternative writ by filing an opposition to the Daily Press's petition, arguing that the documents being sought were exempt from public disclosure pursuant to section 6254, subdivision (f).   The Sheriff did not (and still does not) claim any other statutory or constitutional basis for exempting the subject documents from a requirement of public disclosure.

The trial court determined to conduct an in camera inspection of the subject documents to establish the extent to which the documents might or might not be exempt from public disclosure pursuant to section 6254, subdivision (f).   The Sheriff petitioned this court for a writ of mandate/prohibition to bar the trial court from conducting such an in camera review.  (Case No. E009374.)   On April 30, 1991, this court denied that petition.   The trial court thereafter conducted an in camera review of the subject documents and, on July 19, 1991, issued its order concerning the public disclosure of those documents.   The trial court's order touched on some 65 different documents or sets of documents:  Certain of the documents were ordered disclosed;  certain of the documents were declared to be exempt from disclosure;  and certain of the documents were ordered disclosed only after particular, otherwise protected information was redacted therefrom by the trial court.

 The Sheriff petitioned this court for an order vacating the trial court's disclosure order.   In its petition, the Sheriff primarily argued that the trial court exceeded its jurisdiction in ordering the disclosure of any of the subject documents because those documents were absolutely exempt from disclosure under section 6254, subdivision (f).   As noted in the prefatory portion of this opinion, we originally denied the Sheriff's petition summarily—but our Supreme Court then granted review in the matter and retransferred it to us to consider the underlying issues on the merits.  (See Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1336, 283 Cal.Rptr. 893, 813 P.2d 240.)   As we discuss below, we conclude that section 6254, subdivision (f) does not establish an absolute (in the sense of being unqualified) exemption from public disclosure for “law enforcement records.”

DISCUSSION

I.THE EXTENT TO WHICH SECTION 6254(f) EXEMPTS DOCUMENTS FROM PUBLIC DISCLOSURE

The CPRA represents a classic example of a legislative “balancing act”:  “The CPRA, modeled on the federal FOIA [the federal Freedom Of Information Act], reflects a general policy of disclosure of public records and information subject to narrowly drawn statutory exemptions.  [Citations.]  In enacting the CPRA, the Legislature, though mindful of the right of privacy, unequivocally declared 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.)   Thus, the provisions of the CPRA 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.  [Citation.]  The Act provides that:  ‘Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as [otherwise] provided’ (§ 6253, subd. (a)) and to ‘receive a copy of any identifiable public record’ or a requested ‘exact copy’ unless impracticable.  (§ 6256).” 3  (City of Santa Rosa v. Press Democrat (1986) 187 Cal.App.3d 1315, 1319–1320, 232 Cal.Rptr. 445.)

Section 6254, however, lists certain specific and express exemptions from the CPRA's general requirement of disclosure of public information.   The exemptions set forth in subdivision (f) of section 6254 (hereinafter referred to simply as subdivision (f)) are the exemptions from disclosure which are at issue in the matter before us.

Subdivision (f), as it is currently worded, exempts two basic “types” of law enforcement records from public disclosure:

(1) “Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of”

(a) “the office of the Attorney General and the Department of Justice” and

(b) “any state or local police agency”;

(2) “any investigatory or security files compiled by”

(a) “any other state or local police agency” or

(b) “any other state or local agency”

“for correctional, law enforcement, or licensing purposes.”  (See, generally, Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 650, 117 Cal.Rptr. 106.)

Thus, subdivision (f) contains, in general terms, disclosure exemptions for “law enforcement investigatory records ” and “law enforcement investigatory files.”  Subdivision (f) also contains, in subparts (1) and (2) thereof, an extensive listing of types of information contained in such investigatory records and files which constitute “exceptions to the exemption”—a listing of certain types of “law enforcement information” which are subject to public disclosure notwithstanding the general disclosure exemption provided by subdivision (f).4  The mere existence of subparts (1) and (2) of subdivision (f) does not mean, however, that “law enforcement information” which does not fall within the scope of those subparts is necessarily and absolutely exempt from disclosure under subdivision (f)'s more general provisions:  “[The subparts'] effect is simply to extend public access to information contained in agency records which are themselves exempted from disclosure by section 6254, subdivision (f).”  (South Coast Newspapers, Inc. v. City of Oceanside, supra, 160 Cal.App.3d at p. 269, 206 Cal.Rptr. 527, see City of Santa Rosa v. Press Democrat, supra, 187 Cal.App.3d at p. 1321, 232 Cal.Rptr. 445.)   That is, as to certain types of information, subparts (1) and (2) of subdivision (f) set forth exceptions to the disclosure exemption provided by subdivision (f) regarding law enforcement investigatory records and files, but they do not define, by implication or otherwise, the subdivision (f) disclosure exemption itself.

 Subdivision (f)'s disclosure exemption for what we have called “law enforcement investigatory files ” is a qualified exemption which acknowledges the reality that such files may (and almost undoubtedly do) contain a variety of documents—some of which are subject to their own independent grounds for disclosure exemption and some of which are exempt from disclosure only because they have been placed in an “investigatory or security file[ ] compiled [by an appropriate agency] for correctional, law enforcement, or licensing purposes” (a sort of “vicarious exemption”).   Documents of the latter sort, “vicariously exempt” documents, are not exempt from public disclosure (notwithstanding their presence in “law enforcement investigatory files”) unless they relate to a “concrete and definite” prospect of law enforcement proceedings.  (Uribe, supra, 19 Cal.App.3d at p. 212, 96 Cal.Rptr. 493, citing Bristol–Myers Company v. F.T.C. (D.C.Cir.1970) 424 F.2d 935, 939;  see also ACLU, supra, 32 Cal.3d at p. 449, fn. 10, 186 Cal.Rptr. 235, 651 P.2d 822.)   Documents of the former sort, documents with an independent claim to disclosure exemption, need not have this relation to pending law enforcement proceedings to remain exempt from public disclosure.   (ACLU, ibid., citing Younger v. Berkeley City Council (1975) 45 Cal.App.3d 825, 833, 119 Cal.Rptr. 830.)

 This leaves, of course, an examination into the precise extent of subdivision (f)'s disclosure exemption for what we have called “law enforcement investigatory records,” those documents which do have an independent claim to disclosure exemption under subdivision (f).   Here, reference to Congress's 1974 amendments to the FOIA is helpful.   Just as our Supreme Court looked to these amendments in construing the phrase “intelligence information” in subdivision (f) (ACLU, supra, 32 Cal.3d at pp. 448–449, 186 Cal.Rptr. 235, 651 P.2d 822), so too has the Court of Appeal looked to these amendments to construe the phrase “ ‘[r]ecords of complaints to or investigations conducted by ․ any state or local police agency ․’ ” in subdivision (f).  (South Coast Newspapers, Inc. v. City of Oceanside, supra, 160 Cal.App.3d at pp. 267–269, 206 Cal.Rptr. 527.)   Reference to the above authorities discloses a general guideline that information in “law enforcement investigatory records ” is exempt from public disclosure only to the extent that disclosure of the information would:

“(A) interfere with enforcement proceedings,

“(B) deprive a person of a right to a fair trial or an impartial adjudication,

“(C) constitute an unwarranted invasion of personal privacy,

“(D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, ․ confidential information furnished only by the confidential source,

“(E) disclose investigative techniques and procedures, or

“(F) endanger the life or physical safety of law enforcement personnel․”  (ACLU, supra, 32 Cal.3d at pp. 448–449, 186 Cal.Rptr. 235, 651 P.2d 822;  South Coast Newspapers, Inc. v. City of Oceanside, supra, 160 Cal.App.3d at p. 268, 206 Cal.Rptr. 527, quoting from 5 U.S.C., § 552(b)(7), as then worded.)

These six criteria should be applied by the trial court in deciding whether particular law enforcement investigatory records are exempt under section 6254, subdivision (f).   We remand this matter to the trial court because, although the record indicates that the trial court did apply some of the criteria to certain of the records in question (viz., interference with the right to a fair trial and unwarranted invasion of personal privacy), the record also indicates that the trial court applied certain inappropriate criteria—namely, “cumulative” and “pending litigation.”   Further, the trial court's determination that some records might interfere with a right to a fair trial may have been based on a pending related criminal case which (we are informed by the Daily Press) has now been concluded.   Consequently, the trial court should reconsider whether those records continue to be exempt from public disclosure.

The Sheriff has argued forcefully that the disclosure exemptions contained in subdivision (f) are absolute, meaning, we take it, that the disclosure exemptions contained therein are not to be given a limited or qualified definition.   While the disclosure exemptions set forth in subdivision (f) are express and specific, they are not absolute in the sense that the Sheriff means that word.   The analysis set forth above clearly reveals the error in the Sheriff's position.

II.

COLLATERAL ISSUES RAISED BY THE DAILY PRESS

 In its return to the Sheriff's petition, the Daily Press has raised several collateral issues for our consideration.   A return to a writ is not an appropriate document in which to raise independent issues for consideration, and assert independent requests for mandate relief, by this court.   However, in recognition of the fact that these issues may be addressed to the trial court on remand, we will deal with them in the interest of judicial economy and efficiency.   The issues need not detain us long.

 (1) The Daily Press argues that it should be entitled to receive what is referred to as a “Vaughn Index” (Vaughn v. Rosen (D.C.Cir.1973) 484 F.2d 820, 823–835), a particularized listing of documents being withheld by the Sheriff in this case together with a rather extensive written justification for such withholding.   Vaughn Indices are available under the FOIA, while this is a case brought under the CPRA.   While the one is useful in interpreting the scope and meaning of the other (see ante ), that does not mean that the same exact procedures must be applied in both cases.   There is no requirement in the CPRA that such an index be provided to a party.

 (2) The Daily Press argues that it should have been permitted to “participate” in the trial court's in camera review of the subject documents to “assist” the trial court in properly determining the exempt or nonexempt status of each document under subdivision (f).   There is a patent shortcoming to this argument:  Section 6259 clearly contemplates that the trial court will conduct the in camera review without “participatory assistance” from the requesting party:  “If the judge determines that the public official wasjustified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.”  (§ 6259, subd. (b), quoted only in part, emphasis added.) 5

(3) The Daily Press argues that the trial court should not have stayed the order for disclosure of the documents, pending appellate review of the matter, without providing the Daily Press an opportunity to be heard on whether a stay should issue.   Section 6259, subdivision (c) sets forth the conditions under which a trial court may issue stays in cases of this sort, but that statutory provision does not create a right to a hearing on the issue.   In any event, given that our Supreme Court has issued precisely the same sort of stay order in this case, it can hardly be said that the Daily Press was inappropriately constrained by the trial court's stay order.

III.

CONCLUSION

The matter is to be remanded to the trial court for further in camera review of the subject documents consistent with the review guidelines set forth in this opinion.   Inasmuch as the only disclosure exemption claimed for the documents by the Sheriff is subdivision (f), the trial court need not concern itself with other permissive statutory grounds of exemption.

DISPOSITION

The alternative writ hereinbefore issued is hereby discharged.

The Sheriff's petition for a writ of mandate/prohibition is hereby GRANTED, as follows:

A writ of mandate shall, and hereby does, issue to the Respondent Superior Court to:  (1) Vacate its order of July 19, 1991 compelling the public disclosure of the records and documents therein described;  and (2) conduct further in camera proceedings pursuant to section 6259 and in accordance with the views expressed in this opinion to redetermine the exempt or nonexempt status of the subject records and documents with regard to public disclosure.

FOOTNOTES

1.   Unless otherwise indicated, all statutory section citations refer to the Government Code.

2.   Hereinafter, the American Civil Liberties opinion will be referred to simply as ACLU and Uribe v. Howie (1971) 19 Cal.App.3d 194, 96 Cal.Rptr. 493 will be referred to simply as Uribe.

3.   With regard to the utility of referring to the federal FOIA in interpreting the provisions of the CPRA, our Supreme Court noted:  “The Act [the CPRA] was modeled on the 1967 federal Freedom of Information Act (81 Stat. 54), and the judicial construction and legislative history of the federal act serve to illuminate the interpretation of its California counterpart.  [Citations.]”  (ACLU, supra, 32 Cal.3d at p. 447, 186 Cal.Rptr. 235, 651 P.2d 822.)

4.   These exceptions are themselves also subject to their own exceptions which are not pertinent to the issues raised in this mandate action.

5.   Of course, the trial court is not precluded from receiving such assistance from the requesting party as could be rendered by that party without its being informed of the contents of the public records in question.   Section 6259, subdivision (a), in pertinent part, provides:  “The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.”   A trial court could, for example (and by way of nonexclusive illustration only):  (1) Allow a requesting party to submit points and authorities prior to the in camera examination for the purpose of delineating the only specific statutory exemptions from public disclosure which the requesting party felt were applicable to the disclosure request in question;  and/or (2) allow a requesting party to submit objections to a proposed written order of disclosure/exemption prepared after the in camera examination was concluded (or to an orally pronounced proposed minute order issued after the in camera examination was concluded).   In any event, the allowance of such additional “input” is a matter which lies within the bounds of the trial court's discretion and we leave it to the trial court to consider the same.

TIMLIN, Associate Justice.

DABNEY, Acting P.J., and McKINSTER, J., concur.